The act of filing an FIR against one’s husband or in-laws where the proof of such violations is shrouded in stigma, shame, and taboos require abilities far beyond that of the ordinary Indian woman.

On 3 October, for the first time since the marital rape issue was brought to legislature, the Centre articulated its stand on striking down the exception to the rape clause (Section 375, Exception 2) to the Supreme Court.
The Centre argued that while husbands do not have a fundamental right to violate sexual consent, terming such violations as “rape” is excessively harsh and may endanger the institution of marriage. It also stated that being raped by one’s husband is qualitatively different from being raped by a stranger.

For punitive measures, the Centre explained that aggrieved women could seek remedies under current laws, and hence criminalising marital rape was unnecessary.

The Centre’s arguments demonstrate an erroneous understanding of the impacts of rape. There’s no reason to presume that the consequences of rape are different for the victim when raped by a husband versus a stranger. If anything, rape by the former is exceptionally egregious because of the expectations of mutual trust, care, and respect in a healthy marriage.

Rapes can lead to pregnancies, sexually transmitted infections, genital trauma, grief, anxiety, depression, lowered self-esteem, post-traumatic stress disorder, increased suicidality and feelings shame. Further, sexual violence within marriage has a much wider ambit and is not limited to rape.

Forced sex in India
Qualitative research reveals that forcing partner to watch pornography and enacting scenes, pimping wives, genital  mutilation and other forms of violence have also been reported to researchers, though they seldom find their way to the police or the courts.

Also given the high rates of preferring sons in India, reproductive coercion where a woman is forced to have children and forced abortions if the foetus is found to be female are not uncommon occurrences.

Some studies estimate a rate of nearly 90% of forced sex among married women in India. If sexual assault is exacerbated by brutal physical violence such as beating, choking, dragging by hair, etc., whether by husbands or by strangers, the physical and mental scars of such attacks may take a lifetime to heal, if they ever heal.

While these acts may be illegal, most women without resources do not seek legal redress. The act of filing an FIR against one’s husband or in-laws where the proof of such violations is shrouded in stigma, shame, and taboos require abilities far beyond that of the ordinary Indian woman.

Abysmal conviction rate
According to the National Crime Records Bureau, there were 140,019 cases of domestic violence in 2022, the largest among crimes against women.

The same year, as per World Bank statistics, there were 685,992,675 women in India of which 336,136,411 or 49% were married. This implies just 0.04% of married women reported domestic violence to legal authorities.

As per National Family Health Survey (NFHS)-5, a more reliable but nevertheless a source that underestimates domestic violence – 29% of women reported physical or sexual violence.

The astonishing gap between what women endure silently and what is reported to the police reveal how difficult it must be for the ordinary Indian women to access legal resolutions.

In 2018, just under 6% of domestic violence cases completed trial and only 15% obtained a conviction, indicating that even when women approach courts, they seldom receive justice.

Many men’s rights activists have argued that the low conviction rates indicate false cases of domestic violence. This is a fallacious and a perverse argument because it doesn’t consider the difficulties of criminal litigation in India.

If only 0.04% of women are filing a case of domestic violence when an estimated 29% endure it, how believable is this claim?

Intention to rape
Consider this:  The average Indian woman gets married before 23, has a child shortly because of cultural expectations of having to demonstrate her fertility early in the marriage.

Given this context, what kind of sexual agency can she be expected to have? For women who are financially dependent on husbands and along with the responsibility of children there are no options for exiting abusive marriages.

It is also worth noting that in India the first sexual experience for young inexperienced women within marriages is typically violent and painful. Also research indicates that husbands through emotional manipulation such as threats of adultery or casting suspicions on a wives’ character if she refuses sex, coerce them.

NFHS-5 also asks men about their attitudes towards domestic violence and forced sex. Despite having an image of being less patriarchal the extent to which men in southern Indian states report that it is their right to force their wives to have sex varies between a high of 31% in Karnataka to a low of 6.1% in Tamil Nadu.

The figures stand at 17.7% for Telangana; 11.6% for Andhra Pradesh and 8.8% for Kerala. This is a clear intention to rape.

NFHS-5 reported that husbands also consider it their right to get angry and reprimand wives, refuse financial support or have sex with another woman if a wife doesn’t consent.

The Centre by refusing to criminalise marital rape is essentially facilitating such physical, mental and economic harms for women.

Criminalising marital rape will not adversely affect the institution of marriage – provided marriage is seen as a partnership among equals. The fear that this law will be misused is clearly unfounded given the low rates of domestic violence reporting to legal authorities. What it will do is signal to all women that a husband’s impunity is over.

Author: Prof. Sreeparna Chattopadhyay, Faculty of Sociology, FLAME University.