New Delhi: Her drunk husband forcibly blindfolded her every night, tied her legs to a pole and “forced himself on her”—in other words, raped her—every night.
Jasodaben Bhil, 41, has over more than 12 years heard many accounts of a spouse sexually abusing a partner, and while she can recount many horrific incidents, this one appeared to stand out.
“Such accounts unnerve us,” said Jasuben, as she is fondly called by her colleagues. Yet, these acts are not crimes because any kind of forced sex within marriage is legal in India, only one among 36 countries where marital rape in not a crime.
A counsellor in Radhanpur tehsil with an NGO called SWATI (Society for Women’s Action and Training Initiatives) in the Gujarat’s northern district of Patan, Jasuben narrated how when they took the woman who was tied up to a pole and raped by her spouse to file a first information report (FIR) invoking section 498A (being subjected to “cruelty” by husband or relatives) of the Indian Penal Code 1860, the woman could barely mention what had happened.
“For a married woman, rape by a husband rarely even makes it to the stage of an FIR here,” said Jasuben, explaining why she was anxious but hopeful about a case being heard more than 900 km away in the Delhi High Court, which will decide India’s legal trajectory on the issue of spousal rape.
“Not a lot will change (if spousal rape is recognised as a crime),” said Jasuben. “But when you can name it, you can call it out, you can no longer deny its existence.”
‘An Easy Tool To Harass Husbands’: Govt
The contentious issue of marital rape flows from an exception to section 375 of the IPC, which states that “forceful sexual intercourse by a man with his wife aged 18 years or above is not rape”, even if it is without her consent.
On 21 February 2022, the High Court reserved—or completed hearings in advance of a decision—its verdict in the case RIT Foundation vs. Union of India, hearing a batch of petitions seeking to strike down the exception and criminalise marital rape, a legal question that has been with the court since 2015.
“To say that defer it endlessly, this cannot happen,” said the bench of Justices Rajiv Shakhdher and C Hari Shankar. “This is a matter which will get closed either through a court route or a legislature route.”
The court refused to allow more time to the union government, which asked that the written arguments it made in 2017 be not treated as its final say in the matter, The Indian Express reported.
That year, the government of Prime Minister Narendra Modi had argued that what “may appears to be marital rape” to a wife “may not appear so to others”. The government argued that criminalising marital rape could “destabilise the institituion of marriage” and could become “an easy tool for harassing the husbands (sic)”.
The petitioners include the All India Democratic Women’s Association and the RIT Foundation, both NGOs, and a man and a woman who want the court to strike down the exceptions granted to a husband under India’s rape law.
Process As Punishment & Psychological Penalty
For marital rape survivors in the district of Patan, much like elsewhere in India, the process is both punishment and psychological penalty.
The general attitude was: “‘Sambhog ke liye hi toh shadi karke laya hai, wo pati ka adhikar hai’ (he married you so you can give him with sex, it’s a husband’s right),” said Jasuben.
Similar responses from family members, neighbours, police and community leaders often silence women abused by their husbands. So, they tend to never to speak up, falling back into a cycle of sexual violence and shame, according to Jasuben.
Counsellors narrated to Article 14 the everyday, almost mundane, nature of sexual violence in marriage, a vastly underreported phenomenon, since it occurs in intimate spaces and with the same person.
“Maarpeet-shor (domestic and verbal abuse) is witnessed by the neighbours and family, but sexual violence is not easily recognisable,” said Jasuben.
A Phenomenon With No Name
“Physically forced her to have sexual intercourse with him even when she did not want to.”
That is the category under which spousal violence is recorded in the National Health and Family Survey (NFHS-4) for 2015-16, the national database recording such violence. Under this category, 5.4% of Indian women have experienced marital rape, and an average Indian woman is 17 times more likely to face sexual violence from her husband than from others.
While the data on marital rape exists, marital rape, in law, does not exist. Experts noted how Parliament and the courts have been reluctant to protect married women from spousal rape.
“The law specifically excludes married women from the purview of being raped,” said Neha Singhal, a senior fellow at the Vidhi Centre for Legal Policy. “The ‘exception’ is very telling. If the Centre argues that striking it down could ‘destabilise marriage’, the implication is that the institution of marriage is somehow based on non-consensual sex.”
That is why the union government argument has implied before the court that marital rape should not be recognised as a crime.
The Centre tried to defer the hearing by arguing for a “consultative process” with all stakeholders, including state governments, as the questions involved in the case could have “far-reaching socio-legal implications”. The Delhi High Court said that the consultative process could continue regardless.
While the government attempted to stall the judicial process, women said they often struggled to recognise and explicitly verbalise sexual abuse, enmeshed as it was in other kinds of spousal violence.
The Cost Of Speaking Up
A 2021 study by Oxfam India, a global nonprofit, provided an idea of the extent of the sexual violence in Indian marriages; it estimated there were over 84.4 million women “affected by spousal violence” who needed counselling services; 18.3 million survivors who need medical attention; and a potential 5.4 million survivors of sexual violence who need psychiatric counselling.
Survivors relapse into a cycle of guilt, with family repeatedly asking them to ‘adjust’ amid a “fear of tainting family honour,” said Dolly Singh, operations head at Shakti Shalini, a Delhi-based nonprofit that provides shelter homes and socio-legal aid to survivors.
“Most women, who face marital rape, give their marriage a try for least a year or two,” said Singh. “In cases with no support, they endure it for years on end.”
Jasuben’s colleague at SWATI, Arti Khodidas, runs the Mahila Sahayta Kendra, a services response team, in the general hospital in the town of Siddhapur, Patan.
She explained why survivors often returned to their abusive husbands.
“Court procedures are exhausting and staying at the maayka (natal home) or shelter homes for long is difficult, especially for women with children,” said Khodidas. “The taunts and economic costs become too hard to bear.”
A case in point is M*, a 31-year-old with two children, both studying in English-medium schools. Her salary of Rs 6,000 as a factory worker is not enough to sustain them or even pay the kids’ fees.
“The husband brutalises her everyday, with open threats of violence,” said Khodidas. “He took her home after a mediation. She’ll probably be back here in the next couple months.”
“Even if she is being raped at home, the husband’s home is considered a more ‘dignified’ place for the women to be,” said Amita Pitre, lead specialist for gender justice, at Oxfam India. “The ‘exception’ emboldens men as no accountability exists for their behaviour. There is no deterrent,” noted Pitre.
‘Tune Hi Kuch Kiya Hoga’
The NFHS-4 reported that victims of sexual violence were the most reluctant to seek out help, much less legal recourse. Fear of harassment, hostility from police officials, mostly men, and lack of privacy, create an environment of “extreme discomfort” for survivors who go to a police station to file a complaint, said Singh.
“Policemen blame women for the violence—‘tune hi kuch kia hoga’ (you must have done something),” said Jasuben. “How can a survivor expect to be heard by them?”
Jasuben explained how women in villages like Radhanpur are mostly bereft of agency or decision making in the legal process. “She needs the permission of her parents here, or panchayat leaders are called in by the police to wrap up the case,” said Jasuben. “They don’t even register a complaint if a woman comes alone. They’re sent back home.”
“In my entire career, I’ve never heard a police personnel say, ‘ma’am what’s happened to you is wrong’,” said Monika Tiwary, a counsellor at the crisis intervention centre of Shakti Shalini. “But I’ve heard every single one of them say ‘ma’am, ye toh ghar ka mamla hai’ (it’s a private matter).”
Yet, grassroots workers usually advise survivors to mention marital rape in police complaints, irrespective of its legal credence. “If it’s a part of their journey, it should be mentioned in their written complaint,” said Singh.
What Does Not Work: Existing Laws
The two Indian laws that largely take cognisance of sexual assault by a husband include the 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.
The Centre’s affidavit in 2017 cited the “rising misuse of section 498A of IPC” to illustrate how laws dealing with violence against women could be misused “for harassing the husbands”.
Grassroots workers stated they routinely witness a misconstrued version of this argument play out.
“Even if a woman reaches a court date, we see the entire family including her own parents mentally tormenting the survivor till she’s forced to withdraw the case,” said Jasuben. “A man is barely ever punished.”
In statistics, these withdrawn cases get labelled as ‘poori fariyaad hi khoti hai’ (the entire charge is false). Society blames the survivor who is at the receiving end of every abuse—‘ye mahila hi galat hai!’ (it’s this woman who is wrong).”
The result is that even the few cases that reach trial do not make much headway.
Of 80 cases of crimes against women in 2020, 78.7% or 63 of 80 cases withdrawn from prosecution in courts were those related to section 498A, according to National Crime Records Bureau data, the latest available. Among all crimes against women, the rates of discharge and acquittal in section 498A cases relatively remains the highest.
“En masse, across the country, 498A cases end up in discharge or acquittal,” explained Singhal, who specialises in criminal justice. “She (survivor) has complained to everyone but everyone around her keeps asking her to go back (to the abusive husband). The secrecy around marriage and keeping things ‘private’ are societal factors unaccounted for in such withdrawal.”
Khodidas said that in all the marital rape cases that reached them, courts usually attempted a mediation that favoured the husband.
“They only coax the woman to adjust, never the husband,” said Khodidas. Women are sent back to the husband’s home and forced to withdraw the case. “Within months the husband resumes the violence, and the women come back to us,” she said.
“Just not having a specific ‘exception’ to the rape law will, at the very least, guarantee married women access to a legal remedy,” said Singhal.
Pitre said both section 498A and the PWDVA were “valuable laws”, but observed they were failing women “in terms of giving them access to quick litigation”.
Most survivors and grassroots workers, such as Jasuben, said the Delhi High Court verdict may be of little consequence because women who are abused will still have to endure societal hostility and a tedious legal process.
But it was imperative, they said, to stop normalising sexual abuse “‘within’ and regardless of marriage”. “Survivors need to name it,” said Tiwary, “And know that it’s okay to reach out for help.”
When asked what motivated her to keep going, Jasuben revealed how she was married off in her childhood and was a survivor of spousal sexual abuse, herself. “I don’t want any of what happened to me to happen to another woman,” said Jasuben.
*Denotes that the name of a survivor has been withheld.
(Mansi Vijay is an independent journalist based in New Delhi, currently pursuing Convergent Journalism from AJK Mass Communication Research Centre, Jamia Millia Islamia. Courtesy: Article 14.com. Article14.com is a joint effort between lawyers, journalists, and academics that provides intensive research and reportage, data and varied perspectives on issues necessary to safeguard democracy and the rule of law.)
