Demands to Declare Forcible Sexual Intercourse by Husbands a Crime Get Wider and Shriller

If sex with wives without their consent is legislated as a crime, it can lead to disruption of the institution of marriage, the Union Government apprehends. Contrary to it those who have knocked at the doors of the Supreme Court in the matter say that criminalising the act will lead to recognising the agency of women and restore the infarction of their right to equality before law as the present penal provision is discriminatory against them.

According to Exception 2 of Section 375 of the Indian Penal Code, if a wife is older than 15 years and is raped by her husband, it will not be considered a rape. The Prohibition of Child Marriage Act, 2006, deems marriage illegal if the bride is under 15 years of age. A similar exclusion is found in Section 63 of the Bharatiya Nyaya Sanhita, which dismisses the possibility of marital rape if the wife is above 18 years. These exceptions create a troubling legal framework where the consent of married women is presumed, regardless of their personal feelings.

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Marital rape is considered a domestic violence act and the remedies available for them are civil in nature—protection, separation and monetary compensation under The Protection of Women for Domestic Violence Act 2005.  Despite growing calls against gender-based violence, the Indian law continues to be on the statue book. Now the ball is in the Supreme Court amid raging debates in society against and for its repeal.

Activists and feminists are of opinion that rape should be recognised as such, whether it occurs within or outside marriage. On the other hand, critics contend that criminalising marital rape would lead to prosecution of men, and even its misuse to settle scores with husbands on other issues. Some also claim that marriage inherently implies consent for sex, and thus marital rape is not a legal issue at all. This view, however, reflects deeply entrenched patriarchal attitudes about marriage and the role of women within it, say social scientists gender rights activists.

Marriage being considered a sacrament in Hinduism has historically placed women in a subordinate position to their husbands. Rigid gender norms dictate that women should obey their husbands, fulfilling their marital duties, including sexual relations, regardless of personal consent. These norms perpetuate a dangerous cycle where sexual violence within marriage is not only tolerated but sometimes even justified.

To understand the real-life experiences of women whose husbands committed sexual violence on them, FIRST DRAFT spoke to some of them hailing from different backgrounds -- an educated urban woman and two poor and illiterate domestic workers. Their stories illuminate the different ways in which marital rape is perceived and experienced by women across social the divide.

Sakshi, a PhD student in Sociology at a prestigious university, married her school sweetheart and lives with him off-campus. From the outside, they seem like an ideal modern couple, each pursuing their individual career goals. However, behind closed doors, Sakshi endures her husband’s tantrums, which she has kept hidden from her friends and family.

“He is not a bad person, and I see that he needs help,” she confesses. “I don’t want to trouble my parents or tell my friends because they would ask me to leave him.” On probing further, Sakshi reveals that her husband has, on multiple occasions, forced himself on her despite her explicit refusal. “Theoretically, I know it’s wrong, but I was confused, and couldn’t figure out what had happened. I felt distanced from my own body,” she shares.

She plans to resolve this issue by seeking therapy for herself and, if possible, him as well. Sakshi’s experiences highlight how toxic relationships can be disguised as “normal,” and a woman who appears to be empowered and educated, can also feel powerless in such situations.

Critics who are against the demand to criminalise marital rape argue that it is an issue confined to the higher echelon of society, dismissing the plight of women from the marginalised backgrounds. Paro, a domestic worker from a rural area, shatters this myth. “We may not know the English word marital rape, but we feel the pain of it,” she says.

Paro describes her own experiences of abuse at the hands of her alcoholic husband, who would frequently beat her and force himself on her. Although Paro found refuge with a teacher and eventually left her abusive husband, the consequences were harsh. “My children don’t talk to me anymore, and my husband is now living with another woman,” she explains.

Paro’s story reveals how difficult it is for women in impoverished conditions to escape abusive marriages. Social stigma and the fear being value-judged often prevent the victims from speaking out. Even when they do, the lack of legal recourse traps them in abusive situations.

Charu’s experiences further demonstrate what leads to the lack of legal recognition for marital rape. Living in a cramped two-room house with her husband, two sons, and elderly parents, Charu faced constant pressure from her husband to have sex, multiple times a day. Fed up with his constant demands, she went to her parents to stay with for some time. While she was away, her husband began an affair with his late brother’s widow. Upon her return, Charu confronted him, but he justified his actions by claiming his “urges” needed to be fulfilled. Charu filed for divorce, but the judge instructed them to live together for six months before proceeding with the case. The issue of marital rape was not even considered.

For many women, particularly those who are living in rural and conservative areas, marital rape is a normalised form of sexual violence. Due to societal conditioning, many women may not even recognise that they are victims of rape. Earlier this year, the chilling case of Gorakhnath Sharma came to the fore. He was convicted of rape, unnatural offense and causing death by negligence after he allegedly inserted his hand into his wife’s anus, causing her death. However, the Chhattisgarh High Court acquitted him of all charges, stating that non-consensual anal sex or any other non-consensual sexual act committed by a husband on his wife is not considered rape. A recent film `Mrs’ inspired by the Malayalam original Great Indian Kitchen, has brought the issue of women’s rights in marriage, including their right to refuse sex, into the mainstream.

The debate around criminalising marital rape has been going on for years. In 2014, a petition was filed in the Delhi High Court seeking the criminalisation of marital rape, arguing that the existing law discriminates against married women and violate their fundamental right to equality. However, the government opposed the petition, citing concerns that it would destabilise marriages and disrupt family life. This response reflects the deeply patriarchal mindset that prevails in Indian society.

Rape with within a marriage is a crime in more than 100 countries, and in all 50 States of the US where it was made a crime in 1990s. The National Family and Health Survey (NFHS-5) found that 32% of married women experienced physical, sexual or emotional violence from their husbands and 82% of married women aged 18-49 who experienced sexual violence, reported their current husbands as perpetrators.

The United Nations and the World Health Organisation have also called for the criminalisation of marital rape, but India has so far been reluctant to do so. Psychologists have also weighed in on the mental, emotional and physical impact of marital rape on women, including depression, anxiety, PTSD (Post Traumatic Stress Disorder) and reproductive health issues. If the Indian government is serious about Beti Bachao, Beti Padhao, they will have to first take the fundamental step of enacting laws that protect her rights, including revisiting the legal framework for marital rape and criminalising it.