How will marital rape be proven

The first time her husband raped her was on their wedding night. Only 18 years old and in an arranged marriage with a man she barely knew, she didn’t think that he would demand s*x on the night they got married. He did. She wasn’t ready for it. It didn’t matter.

For the six years that they were married, the husband would get drunk, beat her and demand s*x. When she got pregnant with their first child, he insisted on s*x even though her doctor had advised a brief period of abstinence. She had a miscarriage. Within two months she was pregnant again.

Three years into her marriage, she got a job; he would keep her salary. When she asked for money to pay for their child’s playschool fees, he broke her nose and then raped her again. The doctor stitched her up, after which she walked into the nearest police station. “They were very sympathetic, gave me a cup of tea and told me to go back home and ‘adjust’,” she recalls.

She did. But what she saw as a compromise, he saw as victory. “There was no stopping him after this. He was drinking. He was gambling. Whenever he wanted s*x, I had to give in,” she says.

Even though her parents opposed it— “oh the shame, what will people say”— she walked out. Today, she’s divorced, lives on her own, has a steady job as a teacher and is completing her PhD. “At some point in your life, you have to stand up for yourself because nobody else will,” she says.

The portrait of marriage in 21st century India is slowly unfolding—and parts of it are downright ugly.

Domestic violence has emerged as the single-largest crime against women. In 2013, the National Crime Records Bureau (NCRB) reported over 118,000 domestic violence cases, which made up a third of all crimes against women, far ahead of molestation (70,739) and rape (33,707). The number of reported domestic violence cases also shot up from a mere 50,703 in 2003 before the passage of the Domestic Violence Act of 2005.

In the two years since it was set up, the women’s crisis helpline 181 has received close to 500,000 distress calls relating specifically to domestic violence, says a person associated with the number. “There is an equal number of women who simply don’t report,” asserts the person who did not want to be named.

Sexual violence, including rape, falls within the larger ambit of domestic violence, but rape by husbands within marriages is a shadowy subject in India and exact numbers are hard to come by.

According to NCRB, 98% of all rapes involve perpetrators familiar to survivors. These presumably include friends, acquaintances, colleagues and relatives. But husbands?

In 2013, a United Nations survey found that nearly a quarter of 10,000 men questioned in six Asia-Pacific countries, including India, admitted to having raped a female partner. The belief that they are entitled to s*x even without their partner’s consent is a common motivation, the study found. The majority of these men experienced no legal consequences.

For the average Indian man, masculinity is about “acting tough, freely exercising his privilege to lay down the rules in personal relationships, and, above all, controlling women”, found a 2014 study by the United Nations Population Fund and the International Center for Research on Women. The study found that 60% of men admitted to using violence—kicking, beating, slapping, choking, burning—to establish dominance.

These findings tie in with the 2005-06 National Family Health Survey, which found that the commonest source of violence for married women was spouses. Only one in four abused women has ever sought help, found the survey, and women are much less likely to seek help for s*xual violence than for physical violence. When they do seek help, they’d rather go to family members than the police.

Despite an increase in reporting among survivors following the passage of the Criminal Law (Amendment) Act, 2013, rape continues to remain under-reported. Only about six of every 100 acts of s*xual violence committed by men other than husbands actually get reported, says a report by Aashish Gupta of Rice Institute, a non-profit research organization. “Most incidence of s*xual violence, however, were committed by husbands of the survivors: the number of women who experienced s*xual violence by husbands was 40 times the number of women who experienced s*xual violence by non-intimate perpetrators,” noted the report.

Despite the evidence, minister of state for home, Haribhai Parthibhai Chaudhary told Parliament that marriage is a “sacrament” and that the concept of marital rape cannot be applied to India.

We have a piquant situation. Marriage is a sacrament. But it is perfectly legal to rape your wife.

“It is concerning when a government whose stated intention is to secure women’s safety inside and outside the home, starts talking about culture and tradition to justify a crime,” says Meenakshi Ganguly, South Asia director at Human Rights Watch. “When the state makes culture a reason to refuse to legislate on what is clearly a criminal matter, what message percolates down the line to the entire criminal justice system?”

For advocate Seema Misra, who works with Association for Advocacy and Legal Initiatives, a women’s rights organization based in Uttar Pradesh, that message is pretty clear. “You are basically saying that a wife’s consent doesn’t matter, that we are still stuck with the outdated notion that women are the property of men,” she says.

Laws of the land

India has not stopped talking about s*xual violence since 16 December 2012, when a young physiotherapy student was gang-raped and s*xually tortured in Delhi, and later died of her injuries. Public anger frothed into the streets, forcing the Congress-led United Progressive Alliance government to appoint a three-member commission headed by Justice J.S. Verma to suggest remedies to combat s*xual violence. One of its recommendations was to criminalize marital rape, a suggestion that the government ignored.

“Many people were concerned that if made a crime, marital rape would be misused or be difficult to prove or would result in the unnecessary break-up of marriages,” says Leila Seth, former chief justice of Himachal Pradesh and one of the members of the Verma Commission. “However, it was our view that it would have helped women who needed protection to act against violent husbands.”

Among the many objections to criminalizing marital rape is the question: how do you prove it? “You have only to go to the outpatient departments of any government hospital to know the extent of married women coming in for treatment for grievous injuries caused by s*xual assault,” says a government official who did not want to be named.

“Just because something is difficult to prove, it does not mean that you cannot have a law against it,” says Mrinal Satish, an associate professor with the National Law University, Delhi. Adds Ganguly, “How do you prove any rape charge? Marital rape charges will be subjected to cross examination and forensic evidence, like any other rape charge. It just needs the harder work to strengthen rule of law.”

Others argue that s*xual assault is already covered by the existing Domestic Violence Act. But the Domestic Violence Act is a civil law that gives relief to abused wives. Under it, she can seek protection or civil relief, not criminal prosecution. “As a nation we need to recognize that rape by anyone is a crime,” says Misra.

Domestic violence usually overlaps with drinking or drug use and s*xual violence, says Khadijah, a counsellor who uses only one name. “In my 25 years of case-work I have seen that a woman who wants to walk out of an unhappy marriage will inevitably face s*xual violence,” she says.

Increasingly, men’s rights groups have expressed concerns about misuse. Should marital rape be legalized, they say, it will be misused, citing the routine misuse of section 498A of the Indian Penal Code (IPC) that seeks to protect women. “If now we make marital rape illegal, the institution of marriage itself will fall apart. Men would then rather go to a prostitute than get a wife,” says Rajesh Vakharia, founding member and president of the Save Indian Family Foundation that claims to be the largest men’s rights organization in Asia.

The contradictions

In 2013, the government decided to raise the age of consent—the legal age when a girl is deemed capable of consenting to s*x—from 16 to 18 years. In other words, any s*x with a girl below the age of 18 is statutory rape, even if she is in a consensual relationship.

But what if that girl is a wife? Here’s where the contradictions begin. Although the legal age of marriage is 18 for girls, India has the highest number of child brides in the world. Provided they are over 15 years old, it is legal for their husbands to have s*x with them—with or without their consent.

Yet, by increasing the age of consent, the government has effectively opened the floodgates for the prosecution of boys by irate parents of girls below 18. An investigation by Rukmini S. of The Hindu last year of 600 court judgements in Delhi found that 40% of all rape cases dealt with consenting couples where the girl was a minor and her parents had accused her boyfriend of rape.

Government conservatism in matters of s*xual consent often finds resonance in the judiciary. In February this year, the Delhi high court refused to entertain a public interest litigation challenging section 375 of IPC that does not consider “s*xual intercourse by a man with his own wife, the wife not being under 15 years of age” to be rape.

“When it comes to s*xual offences, the courts have always been conservative,” says Satish of National Law University. “There is a great discomfort about the s*xual autonomy of women and courts rarely take a stand, falling back on stereotypes about how women use the law.”

New beginnings

Domestic violence, including s*xual abuse, is not a problem unique to India. In fact, says Ganguly of Human Rights Watch, “In recent years, India is actually shining in its stated concern about the safety of women. We have seen the protests. The basic mood of the nation shows that we are headed in the right direction. Topics like child s*xual abuse and rape that were never discussed are now out in the open.”

But while public patience is running thin on rape by strangers, the idea that the home itself could be a dangerous place finds fewer supporters.

For many, the idea of s*xual consent in marriage is an anomaly. “If she’s given her consent to marriage, then by definition, she is consenting to a s*xual relationship. It’s possible that at times she may not be well or feel like having s*x and the husband might insist, but by that definition every husband will become a rapist and there is no way prove such marital rape unless it is associated with domestic violence,” says Dr Suneeta Mittal, director and head, (department of obstetrics and gynaecology) at Fortis Memorial Research Institute, Gurgaon.

If you ask women what is the worst form of violence, the answer is invariably s*xual violence and rape, says Khadijah.

With a secure government job ‘S’ walked out of her marriage within five months. “It wasn’t just one thing, it was everything—my looks, the dowry I had brought, my family, even s*x—nothing I did ever satisfied him,” she says. Yet, she says the worst form of torture was not the taunting in public or slapping in private. It was the rape. “He was my husband. He was the one who was supposed to protect me. But I couldn’t even tell my mother about what he was doing and what he made me do.

The problem is not men.The problem is not marriage.The problem is patriarchy.Are we willing to dismantle it.