This is the second part of the three-part series on ‘marital rape and its legal ramifications in India‘ as a part of the Justicemakers’ Writer’s Training Program, run in partnership with Agami and Ashoka’s Law For All Initiative. The first and third parts can be found here and here.
Five years have passed since the J.S. Verma panel committee recommended in favour of the criminalisation of marital rape in India. The recommendation is in tandem with Article 14 (Equality before law) and Article 21 (Right to privacy) of the Indian constitution.
However, Indian states, central government and state high courts continue to differ on their standpoints.
“A man is a man; an act is an act; rape is a rape, be it performed by a man – the husband – on the woman – wife.” Many consider this recent Karnataka high court judgement on marital rape as laudable. It is a milestone in terms of moving ahead in the progressive direction with a non-discriminatory standpoint.
However, the ground reality is far different from media reality. District courts reflect the standpoints that societies have. And assuming all societies are progressive is not true.
The aforementioned judgement was not a binding precedent or followed by a legislature change or even uniformly applicable in all such complaints. Therefore, overall impacts and taking this step forward don’t really affect the reality for several married women suffering in silence.
What Happens In District Family Courts?
Divya Jadhav, a 32-year old women’s rights lawyer based out of Maharashtra and Goa, explains the everyday sights in session and family courts. She explains what she sees every day in family courts and justifies the stark difference between what statistics portray and the reality behind them.
“Every day women face challenges that might go unnoticed in family courts dominated by men. The proceedings or even their statements are not taken until the husband arrives. Some women come with their children, sometimes as small as a few months old and continue to attend all hearings. They have a lot at stake and a lot more to lose,” she explains.
When asked about this gendered comparison, Divya replied, “Most of the women in such cases have gone through severe abuses and stayed silent, may have compromised until being suffocated, and eventually lost all hope. Only after losing at everything, do they come to the courts and make the brave decision of sharing their abuse with their lawyers. There is a lot of embarrassment, they are made to feel by people around them”.
A Snippet Of Ground Reality
In 2019, Maharashtra high court gave bail to a man accused of marital rape, despite his wife being physically paralysed due to continuous abuse. The court stated that the act of forcible sex is “not an illegal thing” in marriages.
While domestic violence is recognised as a human rights issue and is criminalised by law, marital rape continues to be surrounded by societal aspirations and patriarchal rejection. Forced sex by marital partners is a private matter in the eyes of most family courts in India. Hence it goes either unrecognised or is filed under other legally defined assault categories.
From a rights-based approach, international law and the UN Human Rights Declaration provide the necessary support to recognise and criminalise all forms of violence against women including sexual assault in intimate relationships.
Despite the ongoing debate in the Delhi high court on the petitions to criminalise marital rape, sexual assault in marital relationships remains a taboo and contentious issue for the larger Indian society. It is thereby, reflected in how family courts hear and decide on such cases.
Marital Rape: A Nameless Phenomenon In Indian Law
Rape within marriages is not an accepted phenomenon in society at large. Most of them are politically charged and align with anti-feminist forums, according to recent social media based analysis. Our law too, doesn’t recognise spousal rape and tries masking any kind of abuse under the garb of prescribing compromise and preventive strategies (a researcher who studied the posters hanging in family court elaborates).
According to Indian Penal code, Section 375 and explanation 2, consent is defined as “a voluntary communication or an unequivocal voluntary agreement whether verbal or non-verbal, and shows her willingness to commit a performance”.
According to Section 90, Indian central government act, “If the consent is given by a person who,from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or consent of a child (under 12 years of age) is rape”.
Marital rape with an adult wife (more than 18 years of age) is excluded in this definition, therefore not recognised in society at large.
Another two Indian laws that recognise abuse for women but don’t include forced sexual relations by spouse are Protection of Women from Domestic Violence Act, 2005 (PWDVA) and section 498A (cruelty by husband or husband’s relative against a woman) of the IPC.
While the data on marital rape exists*, marital rape, in law, does not.
This further perpetuates the belief that it is a rightful act of husband in marriages, includes harassment of victims by relatives and sometimes families and is also harder to prove due to non-legal recognition. Women in such abuse, tend to withdraw marital rape accusations and therefore become mere statistics in such studies under “cases withdrawn”.
Accessibility Of The Current Laws
Law, its procedures and practices are challenging to understand and access (in some cases) by common people. This is true for any country, not just India. Lawyers act like an intermediate information carrier between law and the survivors.
Most of the time, the kinds of abuse women go through doesn’t fit within the definitions described under Indian law. For example, Divya described a case of a 34-year old woman, with a 4-year old kid, who attempted suicide. The survivor faced domestic, sexual abuse and forced sex for almost 8 years of her marriage by her alcoholic husband.
“There is a widespread lack of knowledge on sections, process and consequences of such laws not only among women but also among lawyers. Judges and lawyers need a refresher course on the kinds of abuse women face and update the laws. It’s high time to consider widening the definition of sexual abuse to include marital rape”, she emphasised.
Moving Forward
Almost 3.9% Indian women who were married, reported sexual violence from their husbands (Karnataka reporting 9.7%, the highest among the 26 states whose statistics were available).
Although in recent times, some Indian state courts have held their decisions in accordance with human rights and recommended criminalising rape irrespective of relationship between victim and the perpetrator (latest addition is Karnataka, as mentioned before).
Amidst pending response from the Central government on Delhi High courts’ questions on removal of marital rape immunity, such state high court rulings have instilled hope for several women struggling to fight their ‘private matters’ under our current criminal laws.
If India can learn from progressive democracies such as the US, Canada, Europe, UK and even our neighbour Nepal, together we can progress as an equal society. The legal shift has to come with widening of legal definitions of rape to include married women.
Learning and social awareness alongside necessary cultural shift will enable marital rape being recognised as a legitimate crime, in violation with human rights and therefore cultivate a just society.
*One in every 25 women are subjected to sexual violence by her husband often or sometimes, National Crime Records Bureau report 2020.