Marital rape is still legal in India. A court decision could change that

Lauren Frayer

February 08, 2022 / 5:54 am

MUMBAI – Over the decades, Chitra Awasthi has counseled thousands of Indian women. Many of them are rape victims. But there's one woman whose story has stuck with her, all these years.

It was about ten years ago, says Awasthi, whose RIT Foundation works to promote social and gender equality in India.

The woman was a domestic worker. Her husband was an alcoholic.

"Her husband was not working. First, he would ask her for money for liquor," Awasthi recalls. "Then, if she couldn't provide it, he would rape her. That was the sequence, every day."

For years, the woman never told anyone.

"It was not just the stigma and social pressure. She actually didn't know that it is her right to say no – that she has rights over her own body," laments Awasthi.

Despite her advanced degrees in social work and decades of advocacy and counseling experience, Awasthi says she felt frustrated. She could help the woman file a domestic violence case against her husband. But she couldn't file rape charges. Because marital rape is not illegal in India.

Since then, Awasthi has been trying to change that. She's now one of several petitioners who've brought a case before the Delhi High Court, asking that marital rape be criminalized in India.

"It's for that woman – whose name I can't even recall – that I filed this petition," Awasthi says. "I think she left her husband and went back to her parents' village, but I haven't kept in touch. There are so many like her."

Why there's a marital rape loophole

Marital rape is a sensitive topic, difficult to measure anywhere, but even more so in India – where most sexual violence is believed to occur within families and goes unreported. According to the Indian government's latest National Family Health Survey, about 30% Indian women aged 18-49 reported having experienced spousal violence. In terms of sexual violence, the average Indian woman is 17 times more likely to face sexual violence from her husband than from anyone else, according to the survey of 724,115 women.

The fight to criminalize marital rape goes back decades but gained steam in 2012, when a brutal gang rape on a New Delhi bus shocked the world. The victim, who died of her injuries, became known as "Nirbhaya" – the fearless one – because under Indian law, her name could not be reported publicly as a victim of sexual violence.

Her case triggered a reform of India's rape laws: A wider definition of what constitutes rape and longer prison sentences for convicts. Police departments across India have also added Nirbhaya brigades of female officers, who patrol dark streets at night.

"That's a great thing! But what happens is, it also reinforces the idea that sexual violence happens outside the home," says Nayreen Daruwalla, program director for prevention of violence against women and children at SNEHA, a nonprofit group doing health and safety outreach in Mumbai's slums. "Whereas the concept of rape within the home is still considered private. There is no recognition. There is no protocol."

So despite this overhaul of India's rape laws following the 2012 Nirbhaya case, a legal loophole remained: Rape that happens within marriage is still not against the law.

Section 375 of the Indian Penal Code, which prohibits rape, also includes an exception, which reads: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."

The High Court petitioners call that patriarchal.

"After marriage, it's the husband's right over the body of the wife, and this concept that a woman can refuse sex within marriage is not widely accepted," explains Mariam Dhawale, general secretary of the All India Democratic Women's Association (AIDWA), a nonprofit group that also filed a petition to the court. "In fact, it was not even accepted by the government. That's why the exception continues today."

To many equal rights advocates, this battle to close that loophole, and explicitly make marital rape a crime, is seen as long overdue. But some conservatives see it as radical – even destructive to traditional Indian values.

So much so that some men have decided to go on strike.

Some men call a 'marriage strike' to protest possible marital rape ban

Last month, some Indian men launched what they call a "marriage strike." They're refusing to get married. It's mostly a publicity stunt on Twitter by a small group of men's rights activists who say feminism has gone too far. Their latest target is the Delhi High Court case about marital rape.

"Our feminist movement is importing this from the West, but India is not the USA," says Anil Murty, co-founder of the Save Indian Family Foundation, a nonprofit men's rights group. "They copied the MeToo movement and other things, but they did not bring the Indian context enough."

Murty is not defending rape. Any violence is wrong, he says. He actually agrees with the High Court petitioners that India is a patriarchal society that gives fewer rights to women. That's precisely why he opposes any marital rape law, he says. Because he worries it could be abused.

"Our patriarchal thinking in society is like this: Let's say a 25-year-old woman is getting divorced. Her life is destroyed. Her life is ruined," Murty explains. "There's a lot of stigma around divorce. The family will have a lot of loss of face, and then they expect the man to compensate the woman with a lot of money – alimony."

Murty cites two reasons for his objections. First, if wives can file rape charges against their husbands, it'll be "he said, she said" — hard to prove, Murty says. Second, bringing such charges will be one of the only ways in which some women can get out of an unhappy marriage without losing face, he says.

He predicts a deluge of false rape claims. Men could end up fighting for years to clear their names, he says.

Murty is divorced himself. He hasn't been accused of rape. But this High Court case hit a nerve with him. So he took to his foundation's Twitter account last month and encouraged Indian men to boycott marriage altogether.

The hashtag #MarriageStrike has been trending ever since.

"This is a gender war! Nobody wants to be tarred as a rapist. Men will have a stain forever," says Swarup Sarkar, who works in financial services and recently joined the marriage boycott campaign online. He too is divorced, and vows not to remarry. "Why take the risk?"

Sarkar too sees this as a misguided feminist campaign, aimed at destroying Indian values.

"Forget about sex. It's getting to the point where you can't even kiss your wife without asking for consent!" he exclaims.

But not all Indian men agree with him.

A male social worker in Mumbai educates women about sexual consent

In the narrow streets of Mumbai's biggest slum, social worker Anand Suryavanshi holds workshops for female victims of violence. He teaches them about their legal rights — and about consent.

It's delicate. Even though India has become a more modern, middle-income economy in recent decades, certain antiquated gender attitudes remain — even among women themselves. Suryavanshi says he suspects that some of the women he teaches in his workshops may agree more with men's rights activists than with feminists, on the issue of marital rape.

"About sexual violence – or any other violence for that matter – if we speak with older women who are 50 plus, they are not ready to accept it. Their mentality is different than the younger women. It is so difficult to change their mentality, to convince them that the world is changing," he says.

Suryavanshi works with SNEHA, the Mumbai nonprofit whose program for prevention of violence against women and children is directed by Daruwalla. Together they have a team of mostly female social workers as well as neighborhood volunteers. They work with 5,000 households in Dharavi, a slum that's often called Asia's largest and was featured in the 2008 film Slumdog Millionaire.

To reach women who aren't comfortable talking about sexual violence in person, Suryavanshi has posted a hotline phone number on the wall of a local shop where the poor go to receive government food rations, and in the women's communal toilet area of Dharavi. So that women can call SNEHA discreetly to report violence or ask questions.

One recent call came in from a Dharavi resident whose husband had smashed a mirror over her head. She was bleeding profusely, recalls Sangeeta Dongre, a hotline volunteer who answered the woman's panicked call.

"My husband and I went over and took her to the hospital. The broken glass had slashed her neck. There was a pool of blood on the floor," Dongre recalls.

The woman survived, Dongre explains. But she refused to press charges against her husband.

It's an example of how difficult it is to get women in India to report domestic violence. Getting them to report marital rape is even harder, experts say.

"There is resistance among women themselves about marital rape," Suryavanshi says. "Many of them think it is not a big deal."

The Delhi High Court is expected to rule within weeks or months on the petitions to criminalize marital rape in India. It's also asked India's parliament to weigh in. Even if a big legal or legislative change comes, a cultural change could take much more time.