24 Jan 2022, Sreeparna Chattopadhyay

For justice to prevail in India, marriage must no longer be allowed to act as a cover for sexual violations

The Delhi high court is hearing whether the marriage exception to Section 375 (Exception 2) of the Indian Penal Code should be struck down, so that married women would have legal recourse if they are coerced into sexual intercourse by their husbands. The legal position and that of the Centre has been that once a woman is married, consent is presumed and continuous for the duration of the marriage, implying that consent does not need to be negotiated before each marital sexual encounter. The recent round of the National Family Health Survey (NFHS-5) indicates that over 24% of Indian women report facing either domestic or sexual violence; this is likely to be an underestimate, given that much of it goes unreported.

As a social scientist who has spent over a decade researching sexual and domestic violence, I believe the high court should not hesitate to criminalize marital rape. Decades of research have indicated that the first marital sexual experience for inexperienced Indian women is recounted with pain and horror.

This is not surprising when one examines gender-role attitudes revealed by the NFHS. The fifth round asked men whether they thought they had the right to do any of these if their wives refused to have sex with them: Get angry and reprimand her, refuse financial support, use force to have sex, and have sex with another woman. For India’s 10 most populated states for which data is available, we find that justifications made to force sex in the absence of consent ranges from a high of 31% in Karnataka to a low of 2.5% in Odisha.

In the NFHS-4, 5.4% of women all-India reported that they had been forced into sex by their husbands, and over 27.4% reported being physically abused. These numbers also conceal the wide variation that exists in the experience of forced sex across Indian states. While in percentage terms, these seem small, in absolute numbers these are very large.

By changing the law, the government would signal that men in India can no longer rape their wives without legal consequences, even if such instances may be rare, since most cases of domestic violence are not reported to the police and fewer are brought to trial or obtain convictions, notwithstanding the myth that Section 498(A) on cruelty to wives is widely misused. Forced sex and other forms of sexual violence within marriage is, first, a violation of women’s human rights. Second, it damages India’s global standing, as India is a signatory to the CEDAW, a convention on the elimination of all forms of discrimination against women. Marital rape not being a crime is inconsistent with India’s international commitments.

Third, marital rape has adverse and long-term consequences on women’s (and children’s) health and well-being. We don’t need to enumerate all the physiological and psychological impacts of marital rape, but the list is long and includes injuries, unwanted pregnancies, repeated abortions, poor reproductive and sexual health, a higher propensity to contract sexually transmitted infections, and poor mental health. In families where women endure domestic and sexual violence, children are also likely to be affected because of incomplete immunization and other knock-on effects on their health.

Consent is a tricky matter within and outside marital relations. Research reveals that many women unwillingly ‘consent’ to sex within marriage, often normalizing marital rape because they see it as a marital obligation. Sometimes, they seek to justify it as a difference in the sex drive and needs between men and women, with the former seen to have higher sexual needs to be fulfilled.

During my year-long research conducting interviews with women on domestic violence, women found it relatively easy to discuss being physically abused, but many refused to discuss sexual violence even when these questions were asked using the Hindustani phrase ‘zor-zabardasti’ for coercion. The reasons for this silence vary: We lack the vocabulary or imagery to describe forms of marital rape, there is a presumption of consent (and so the act does not invite legal attention), and it’s a highly sensitive issue.

In the public imagination, rape is an act of extreme violence with visible injuries. While this may happen in marital rape too, this abuse is often characterized by a repetitive and undignified surrender of bodily autonomy. We should thank recent films like The Great Indian Kitchen and Lipstick Under My Burkha for bringing these issues into our kitchens and dining rooms.

The silence around marital rape is not unexpected. However, if the law were to change, it would give the problem visibility, acknowledge the harm and pose a deterrent. It took us a long time and decades of campaigning to introduce a specific law against child sexual abuse in 2012, the Pocso Act; in most cases, the perpetrator is a person known to the child. This law hinges on the child’s inability to consent. By the same logic, the law should not make an exception only because consent is violated by a person known to the woman—her husband in this case.

Men’s rights activists have raised the spectre of the rape law’s misuse should the marital exception be removed. Already, they have been marginally successful in diluting the provisions of Section 498(A) after a Supreme Court ruling said that the immediate arrests of husbands and in-laws should be stopped unless complainants bear visible signs of injury. We should not underestimate the influence of such activists.

However, if our courts do not unequivocally state that Indian men do not have the right to rape their wives, who will?

Sreeparna Chattopadhyay is associate professor, sociology, School of Liberal Education, Flame University

courtesy The Mint