On April 29, India's government inflamed the debate over gender violence and its tolerance in the country by announcing that marital rape should remain legal because of cultural and religious norms.
"It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, e.g. level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.," Haribhai Parathibhai Chaudhary, the minister of state for home affairs, said in a written statement.
He was responding to a question about the government's position on marital rape after a report from the United Nations Committee on the Elimination of Discrimination against Women recommended that India make it illegal. Section 375 of the Indian Penal Code, which defines rape, says that "sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape."
Chaudhary noted that no one in the government, led by Prime Minister Narendra Modi's Bharatiya Janata Party, had proposed amending the penal code to make sexual assault within marriage a criminal offense.
'The idea of consent does not even occur to an Indian male. That is unfortunately the cultural bias that gives our ministers such a jaundiced view on the status of women.'
A wave of nationwide protests demanded tougher laws for crimes against women after a young woman was brutalized and gang raped in a moving bus in New Delhi in 2012, setting in motion remarkable changes. The Justice Verma Committee, a three-member panel of jurists established to review sexual assault laws, submitted a detailed report to the government and eventually informed amendments that expanded the legal definition of rape and increased the sentence for convictions in sexual assault cases.
But an ordinance to introduce stricter penalties for sexual assault excluded the committee's recommendation to criminalize marital rape and bring sexual violence by members of the armed forces under the jurisdiction of ordinary criminal law. At the time, members of the parliamentary standing committee on home affairs argued that a marital rape criminal statute "has the potential of destroying the institution of marriage."
"It was, therefore, felt that if the marital rape is brought under the law, the entire family system will be under great stress," the committee noted in a report on changes to the penal code.
"What our government is trying to tell us is that a husband or army man is absolved of rape, and that a woman should have nowhere to go if her rapist is one of the two," Vibhuti Patel, a professor of gender economics at the SNDT Women's University in Mumbai and a trustee at the Women's Research and Action Group, told VICE News.
She pointed to data from the latest National Family Health Survey conducted on behalf of the Ministry of Health and Family Welfare, which found that 6,590 in every 100,000 women had been forced into sex by their husbands, and less than one percent of those cases had been reported to the police. Another study conducted by the International Centre for Women and the United Nations Population Fund found that a third of the men interviewed across three Indian states admitted to having forced a sexual act upon their wives at some point in their lives.
"There is ample evidence to prove that marriage is not a safe haven," Patel said. "When a person in public life, such as the minister of state for home affairs, makes an egregious comment and uses a cultural explanation to take away a woman's right to say no, to compromise her bodily integrity and dignity, we have fight back harder to continue a legacy of equality and mutual respect that we inherited from India's struggle for freedom and social reform, not a legacy of abuse."
After Chaudhary's comments sparked controversy, the government's defense centered around legal provisions that protect women within existing laws — specifically the Domestic Violence Act 2005, which gave women facing marital rape access to civil remedies.
Nalin Kohli, the national spokesperson of the ruling Bharatiya Janata Party, told a television news channel that speaking about what happened between a couple in the bedroom is not customary for a large cross-section of the population in India, especially those in rural areas and small towns.
"The second aspect is that within this, an argument is there that women who are in a bad marriage for any reason can still exit the marriage, and the current laws favor the lady, as they must," he told the news channel. "So whether it is the dowry law, whether it's domestic violence, whether it's cruelty, courts are giving favorable things more in cases of ladies."
Kohli also suggested that plaintiffs can in some cases misuse laws on rape, marriage, and other offenses.
"There may be false allegations," he continued. "Whether our society is fully ready for it, these all have to be taken into consideration before something is passed or accepted. Just because they are applicable in the West, which is a different society, it does not necessarily mean we need to blindly take those laws right here."
In February, the Supreme Court of India rejected a woman's plea to recognize marital rape as a criminal offense, saying that she was "espousing a personal cause, and not a public cause." Kamlesh Kumar Mishra, the woman's attorney, told VICE News that her husband had tortured and raped her, and brutalized her with a torch. She required hospital treatment for over a week.
"Compare this with the December 16 gang rape," Mishra said, referring to the 2012 Dehli incident. "The crime committed on this woman is of the same magnitude. On one hand, we are saying, 'Hang those rapists,' but on the other hand, we are quiet, simply because the accused here is her husband."
The woman could have filed charges under Section 498A of the penal code, which outlaws cruelty to women. But Mishra said that cases based on 498A and the Domestic Violence Act were "presumed to be weak, false, and that parties were bound to settle the matter," so he and his client instead challenged the constitutional validity of the marital rape exception available to husbands.
The woman, who had medical records to prove the abuse, found that police and her former attorneys encouraged her to make her marriage work or file for divorce instead of seeking punishment, according to Mishra. This "inherent prejudice" privileges marriage above abuse and discourages survivors from framing marital rape as an offense, he said. The International Center for Women and United Nations Population Fund study found that while a third of men admitted to having sexually assaulted their wives, a far lower proportion of women admitted to the experience.
Nandini Sardesai, a sociologist and former professor at the St. Xavier's College in Mumbai, told VICE News that deep-seated patriarchy within India is behind this reluctance to take human rights abuses within the family to courts and the public realm.
"An Indian woman lives under the tutelage of a man her entire life. When she's a daughter, the father thinks he can dictate, then her husband, later her son," she said. "The idea of consent does not even occur to an Indian male. That is unfortunately the cultural bias that gives our ministers such a jaundiced view on the status of women."
Mishra, who is a member of the Human Rights Law Network, a collective of lawyers and activists in India, said that he is collaborating with women's organizations and mobilizing survivors of marital rape to persuade India's highest court that his client's case was not limited to a personal cause.
He noted that the legal exception available to husbands under Section 375 of the penal code was introduced by the British and inherited by India along with other laws from the colonial era. The clause contradicts the new anti-rape law, which put the age of consent for sex and marriage at 18, though brides are sometimes younger than that in practice. This means that a married woman between 15 and 18 years has no protection from rape at the hands of her husband, though the same woman is considered incapable of consent if she is unwed.
"These ideas that a woman is the property of the man, and property cannot say no to sex, are nowhere in Indian culture," he said. "When Britain, the country of origin for this exception, has done away with it, why are we still holding on to it? If the government's argument is that we are not ready because we are uneducated, then we need this law more than anyone else."
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