It’s still legal to rape your wife in India, but not a live-in partner or separated spouse. A petition seeks to remove the legal immunity given to husbands

In Deepti Naval’s ‘Thoda Sa Aasmaan’ on Doordarshan, the female protagonist walks out on her husband who physically abuses and forces himself on her. That path-breaking show was made 23 years ago when the subject of marital rape was taboo. Reflecting the times, the woman in the tele-drama eventually returns to her husband after he apologises.

Indian women have come a long way since then. Though the law doesn’t criminalise marital rape, many are challenging the exemption that husbands get. Last year, a 25-year-old newly married Delhi woman sought help from an NGO after her family refused to rescue her from the husband who had raped her several times. “My family told me that it was alright for a husband to force himself on his wife but I believe marriage is not a licence to rape,” the survivor told TOI. She not only filed for divorce but refused to return to her parents’ house. A commerce graduate, she took up a job as an office assistant and lives in a shelter run by a self-help group.

Many other survivors of marital rape are now pinning their hopes of justice on the Delhi high court, which is hearing a petition filed by the RIT Foundation, a legal aid group, and All India Democratic Women’s Association (AIDWA), the women’s wing of CPM. The petitioners have sought removal of legal immunity granted to husbands from rape charges under exception 2 of section 375 of IPC. The petitioners are represented by noted lawyer Karuna Nundy and advocate Raghav Awasthi.

Marital rape, the lawyers claim, is more common than people think. According to a 2014 study by Research Institute for Compassionate Economics, the number of women who suffered sexual violence by husbands was 40 times more than non-intimate perpetrators.

The current laws “have caused millions of women to be legally raped,” points out Nundy. The exception, she argues, classifies rape victims in three different categories — married, married and separated, and unmarried. While unmarried women, those in live-in relationships and those legally separated can seek justice under the rape law, married women can’t. This, Nundy, argues violates a woman’s right to equality before law. “It also assumes non-retractable consent of women to sexual intercourse. Besides, it violates a woman’s physical integrity and autonomy that flows directly from the fundamental right to life,” says Nundy.

However, those who oppose criminalisation of marital rape argue the law will be misused. They also point out that there can be no real evidence whether a wife has been raped or not by her husband in a long-time sexual relationship. “Almost all laws are susceptible to misuse. But just because people are falsely accused of murder or financial crimes, no one seeks to de-criminalise murder or money laundering. Secondly, if a rape committed in a long or short-term live-in relationship is treated as rape under law, how is rape in marriage any different?”asks Awasthi.

Although marital rape can be punishable under 498A of IPC, which covers cruelty against women, Nundy says that it does not grant married victims the benefits of anonymity, medical care and legal aid, which are provided to rape victims otherwise.

Though the Justice Verma committee, in its 2013 report post Nirbhaya, had recommended criminalisation of marital rape, no political party, barring CPM, has supported it. In its opposition to the petition, the Union government has cited tradition and religious beliefs that treat marriage as a sacrament.

Marriage in India, Awasthi agrees, has been traditionally treated as a sacrament but he argues that nowhere do Hindu religious texts grant immunity to husbands for rape. “Our culture celebrates the exercise of choice by a woman in matters of selection of partner as well as sexual autonomy,” he says.

Many say that since marriage presumes consent for a sexual relationship, a law against marital rape will cause irreparable damage to the institution. “A law against marital rape will not destroy marriage; rape destroys marriage,” retorts Nundy. Now, it’s up to the courts to give wives the right to say no.