Why India Still Allows Marital Rape

By Preetika Rana

Last week, Sunita Kumari, a house cleaner, showed up at her employers’ residence in New Delhi with a swollen lip and bite marks on her neck.

“I tripped on the stairs last night,” Ms. Kumari says she told her employer – a 43-year-old banker– when questioned about her wounds.

She was lying.

In a recent interview with The Wall Street Journal, Ms. Kumari, a mother of four, claimed her husband “was rough” on her that night because she denied him sexual intercourse.

“He had his way that night,” says Ms. Kumar, who alleges her husband forced her to have sex with him. “It wasn’t what I wanted to do but who am I to say anything?”

Her husband, a daily-wage laborer, could not be reached for comment.

Ms. Kumari, 28, who earns her living working as a house cleaner in an upscale east Delhi neighborhood, says “many women in her locality” — a slum in the eastern reaches of the capital — “are forced daily” to have sex with their husbands.

“There is no law which allows us to press charges against our husbands,” she says.

Under Indian law, marital rape is not a crime. This places India in the company of a handful of countries, including China, Afghanistan, Pakistan and Saudi Arabia.

In the wake of the gang rape of a 23-year-old woman last year, India last week strengthened its sexual assault legislation. But despite calls from activists, a man who rapes his wife cannot be punished under the country’s laws.

Whether to criminalize marital rape was widely debated in India ahead of last week’s vote in Parliament.

Criminalizing marital rape was also among the suggestions of the Verma Committee, a three-member panel appointed to suggest amendments to India’s sexual assault laws. The government rejected this proposed change, leaving it out of the draft bill it then presented to Parliament.

A panel of lawmakers who opposed the move argued it “has the potential of destroying the institution of marriage,” according to a report submitted to Parliament earlier this month.

“If marital rape is brought under the law, the entire family system will be under great stress,” adds the report.

Lawyers and women’s rights activists have sharply criticized the decision to leave marital rape out of the penal code.

“The act of rape itself destroys the institution of marriage, not the ability, or inability to legally prosecute such an offense,” says Mrinal Satish, an associate professor at the National Law University in New Delhi.

“Rape is rape. There are no exceptions,” he added.

Supporters of the government’s decision, including the police, claim it is hard to prosecute marital rape, because unlike an unmarried victim, evidence of penetration is not considered sufficient evidence for rape. The law, they argue, could be misused by couples.

Some activists acknowledge it is hard to prove rape among married women, but argue this is not a good enough reason to deny women a legal framework to fight sexual abuse. “A murder is also hard to prove,” says Vrinda Grover, a human rights lawyer. “But that doesn’t deny victims from seeking legal recourse,” she says.

Ms. Grover criticized the observations made by the Parliament appointed-panel of lawmakers as “misogynistic.”

“These statements defeat the entire purpose of the bill itself,” Ms. Grover said. “One hears about cases of marital rape everyday… Why then is the government turning a blind eye?” she asks.

While official data on marital rape remains sparse, activists and lawmakers claim there is plenty of evidence to suggest it is on the rise.

In early 2000, for instance, two-thirds of married Indian women surveyed by the United Nations Population Fund claimed to have been forced into sex by their husbands.

In 2011, a similar study released by the International Center for Research on Women, a Washington-based non-profit, said one in every five Indian men surveyed admitted to forcing their wives into sex.

Some legal experts believe the government is reluctant to criminalize marital rape because it would require them to tweak laws based on religious practices, including the Hindu Marriage Act 1955, which says a wife is duty-bound to have sex with her husband.

Denying sex, according to traditional Hindu beliefs, goes against the duties of an ideal wife.

It is common for courts to grant a divorce on the grounds that a wife denies her husband sexual intercourse.

“The wife is unwilling to share the bed and discharge her duties,” the Karnataka High Court said in a judgment last year, adding that this violated sections of the Hindu Marriage Act.

Another petition filed in the Delhi High Court last year, showed a lower court had granted a man divorce after his wife “caused mental cruelty” by denying him sex, including on the night of their wedding.

“One cannot criminalize marital rape unless supplemented with amendments in the Hindu Marriage Act,” notes Mihira Sood, a lawyer focusing on women’s rights.

But amending laws related to Hinduism, she believes, is “near to impossible given the frail religious sentiments” in the country. “Religion is a volatile topic in India. The government certainly doesn’t want to meddle with it,” Ms. Sood says.

A spokesman for the ruling Congress party declined to comment on whether tweaking religious laws had anything to do with excluding marital rape from provisions of the bill passed last week.

“The Parliamentary panel has given reasons for excluding marital rape in their report. There is nothing more to say on this matter,” he said.

Many countries criminalized marital rape in recent years. For instance: Malaysia changed its laws to that effect in 2007; Turkey in 2005; and Bolivia earlier in this year. The United States began criminalizing marital rape in 1970s and most European countries in the 1990s.

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