A report says that two-thirds of married women in the age group of 15 to 49 have been beaten and forced to have sex with their husbands. Unfortunately, a man can’t be convicted of raping his wife as the rape laws do not apply to married couple. In fact, a judgement in May this year said that once the woman has legally wed, forced sex cannot be labeled as rape. lawyers and women rights’ activists tell SANGEETA YADAV that marital rape mostly goes unpunished because there’s no separate law to tackle this crime and that it is time justice is provided to these victims

It never occurred to 37-year-old Swati Jain that after being happily married for almost 12 years, she would need to fear her husband who had never even raised his voice. The terror came on November 16, 2014 when her husband wanted to have sex with her and she refused. Just as she turned on her side of the bed to go to sleep, her husband pinned her down and forced himself on her.

“When she called me and narrated the incident, I told her that it was marital rape and she needed to file a complaint against him. But Swati didn’t want to as he had been a role-model husband so far and it was probably a one-off incident. For the sake of her family and two children, she didn’t want to take any legal action. She just wanted to talk to someone about what had happened and what she could do in case it was repeated. She told me that she was now scared of him and since that day she has hardly had any sleep,” Parmanand, a Delhi High Court lawyer, says.

He says that cases of marital rape are a dime a dozen but the only reason why the women don’t file a case is because sometimes children are involved and they don’t want to embarrass themselves in front of the court, we all know how rape victims are treated in court. “Such women prefer to lie rather than take a stand in court” Parmanand tells you.

So it is not surprising that 25-year-old Jyoti Rawat, a primary teacher with Delhi’s Government school, lies about her injuries. Each day, she walked to school with red marks and fingerprints on her cheeks or sometimes a swollen lip and even bite marks on her neck. Every week she had a new story to tell. “I’m having food allergy”, “I fell from the stairs last night” or “an insect bit me”. Even her students could make out that she was in an abusive relationship.

It took the principal over a month to get the truth out of Jyoti who broke down and confessed that she was being sexually abused by her husband, a general store owner. It was an arranged marriage and the couple have been married for two years. The reason why her husband who rape her every night was because Jyoti denied him sex.

“Marital rape in India isn’t a criminal offence so men have no fear when it comes to forcing themselves on their wives. The Hindu Marriage Act of 1955 needs to be amended. There is also need to see that it is implemented effectively. It’s an age-old notion in the society that once the woman get married, she doesn’t have the right to refuse sex to her husband. For men, marriage gives them the licence to have sex and a wife doesn’t have the right to say no,” Sunita Thakur, legal advisor and counsellor at Jagori, a New Delhi-based NGO that works for women’s rights, tells you.

Social stigma attached to marital rape stymies any open protests. “The absence of a specific law to say that marital rape is even an offence means the husbands are literally getting away with rape,” Thakur tells you. But she points out that their NGO gets 10-14 cases where women complaint of sexual and mental harassment. “It is only during counselling sessions that these women recount how they are being raped by their husbands,” Thakur explains.

lawyers agree that because Section 375 of the Indian Penal Code (IPC), a special exemption states that sexual intercourse by man with his wife, the wife not being under 15 years of age, is not rape that men are forcing themselves. “Because of this loophole, the husband will walk free even if the wife files a report. However, just because the law states something, it doesn’t give the right to a man to rape his wife. Does a marriage licence to the husband over their wife’s body and allow them to treat her like a sex object, torture her and and sexually assault her if she refusesIJ The answer is no. But in India wives continue to be raped by their husbands,” Parmanand says.

But unlike India, countries like New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Russia and Poland, have a law that makes marital rape a criminal offence. According to the United Nations Population Fund report, approximations every six hours a young married woman is burnt or beaten to death, or driven to suicide from emotional abuse by her husband. It states that more than two-thirds of married women in India, aged between 15 to 49 have been beaten, raped or forced to provide sex. In 2005, 6,787 cases were recorded of women murdered by their husbands or their husbands’ families and 56 per cent of Indian women believed occasional wife-beating to be justified.

In early 2000, two-thirds of married Indian women surveyed by the United Nations Population Fund claimed to have been forced into sex by their husbands. The last National Family Health Survey of India (2005-2006) found that 40 per cent of women (aged 15-49), married at least once, had experienced physical, sexual or emotional violence perpetrated by spouses. This form a sample size of 1.25 lakh women across 29 States. The Joint Women Programme’s report revealed that one out of seven married women had been raped by their husband at least once. They don’t report these rapes because of the exemption in the law and lack of legal support to them.

“The sad part is that women only complain of marital rape after the marriage is over. No woman will complain of marital rape and continue to live with her husband, unless she has an alternative. In other words, a woman will only come forward and file a case of marital rape when she knows that her marriage is over and that there is nothing left to hold on to. Otherwise she is opening herself to more sexual abuse and non-consensual sex,” Indira Jaising, former additional solicitor general and legal activist says.

In March 2013, Rashmi Singh, claimed that Vikash (her husband) sedated her and took her to the office of the Registrar of Marriages at Ghaziabad in an intoxicated state where she was made to sing the marriage documents signed. He then took her to a room where he raped and then abandoned her. Judge Virender Bhat on hearing the case on May 7, 2014 said that even though she had been drugged, forced to marry and then raped by her husband wouldn’t qualify as rape under Indian law. The judgement read: ‘The prosecutrix (the wife) and the accused (Vikash) being legally wedded husband and wife, and the prosecutrix being major, the sexual intercourse between the two, even if forcible, is not rape and no culpability can be fastened upon the accused.’

Proving marital rape is the biggest challenge. “First, not many women will come out and claim that they have been raped by their husband. If they do so, proving it in the court becomes difficult. If she bears injury marks that may appear during a struggle, her side of the argument will become stronger. Wounds including those on the hands, face, near private parts, bruising, soreness, black eyes, fracture, miscarriages, stillbirths and infections are important factors that can be taken into account. However, where such clear medical evidence is not there, one may rely on circumstantial evidence. A lot will depend on quality of investigations.” Pallavi Pareek, a workplace harassment consultant and founder of legal education startup iPleaders, says.

But this doesn’t mean that the women don’t have a redress at their disposal. In 2005, the Protection of Women under the Domestic Violence Act was introduced. It defined “sexual violence” as a form of violence and wives can seek protection under this law. There have been cases where the women file a case under that Act alleging sexual violence and seek protection against the husband. However, such complaints are filed when the husband and the wife are no longer together in a relationship misused. One is told that victims of marital rape can get relief by filing a case against her husband under 498A IPC (husband subjecting his wife to cruelty).

In dealing with a marital rape case, additional sessions judge Kamini lau rejected the bail plea of a man who was accused of raping and forcing his wife to indulge in unnatural sex with him. The judge gave out a statement saying that: “It’s unfortunate that we in India are yet to recognise woman’s right to control marital intercourse as a core component of equality. It’s the gross violation of the acknowledgment of a women’s right of self-determination —  control on all matters relating to her body and criminalisation of marital rape. Women have to be protected from all kinds of sexual perversity. Just because the complainant happens to be the wife of the accused, it doesn’t in any manner mitigate the offence keeping in view the nature of the allegations involved”.

last year, the Bill for the amendment of criminalisation of marital rape law in India and the removal of exemption was turned down by the Verma Committee. The report said that marital rape law ‘has the potential of destroying the institution of marriage. If marital rape is brought under the law, the entire family system will be under great stress.’

“Considering a wife as a sex object or a baby producing machine itself destroys a marriage. A rape is a rape — be it a marital rape or a stranger raping a woman. The law should not encourage forced reconciliation of husband wife in a sexually abusive relationship where the woman is a victim. One should not protect a man by saying it is spouse rape. This weakens the ability of the woman to protect herself. It’s an irony that while sexual assault is a crime, raping a wife has no legal repercussions,” Pareek tells you.

Then there is the overlapping of the IPC and the POSCO Act. Many social and legal activists and organisations have suggested removing the exemption and treating marital rape as like any other rape.

“If a conflicting case arrives in the court, the IPC Act is followed instead of POSCO because other sections of IPC are also applied on the accused. The police officer is the first person who takes the action on the case and they must file an FIR under section 498A of the IPC. The police officers and other people associated with it should have emotional quotient and deal with the complaint maturely with no bias. From gynaecologists to police officers to doctors to advocates everyone should discuss various procedures to establish separate legal entity for marital rape and how to deal with such a sensitive issue,” Madhu Mehra, feminist lawyer and executive director of Partners for law in Development tells you.

Sadly, the family whom the woman first approaches with her trauma are the first to distance themselves saying it is a matter to be settled between the husband and the wife. “This is very wrong. Women, who suffer marital rape look for support from her family and when that door closes she has no option but to suffer in silence or hope that it will soon be over,” Mehra explains citing a case in Mumbai.

Ankita Sinha a resident of Mumbai married Rajeev Verma. On their wedding night, Ankita was not mentally prepared to consummate their marriage. Verma, who was completely sloshed, forced himself on her. She had injuries from the broken bangles on her wrist and red marks on her shoulder and back. This was not all, Ankita’s nightmare returned every night after that. When she narrated this to her mother, she was told to keep quiet as the incident will only humiliate the family. Ankita then became pregnant. But her trauma didn’t end. Rajeev wanted to have unnatural sex.  This led to severe complications and finally a miscarriage. It was then that she filed a complaint. Today, the couple is divorced and Rajeev was put behind bars.

“When the wife withdraws her charges of marital rape on the basis of filing false FIR and pleads for her husband’s bail, the case should rest on the basis of the investigation done by the IO. Also, giving a bail to the accused with a warning doesn’t mean that the husband will not attempt such an act again. To ensure the safety and complete justice to the women, the investigation team must investigate each and every aspect of the case. Only when justice is done will it give confidence to other women to fight for their rights,” Mehra says.

REMEDY FOR WOMEN

• Despite not having a separate marital rape law that declares it as a criminal offence, there are other legal remedies that women can seek to get protection from the court and file an FIR on the basis of sexual violence. Women who are experiencing marital rape in her life can get some relief by filing a case against her husband under 498A IPC (husband subjecting his wife to cruelty).
• According the NCRB’s Crime in India report, cases relating to cruelty against women by husband and relatives increased by 11.6 per cent during 2013 over the previous year.
• In 2005, the Protection of Women under the Domestic Violence Act was introduced. It defined “sexual violence” as a form of violence and wives can seek protection under this law. There have been cases where the women file a case under that Act alleging sexual violence and seek protection against the husband.
• Giving bail to the accused with a last warning doesn’t mean that he will not attempt such an act later on. To ensure the safety and complete justice to the woman, the investigation team is asked to inquire all the aspects of the case, be it psychological, financial and others, and keep a check on the family.
• If a conflicting case arrives in the court, the Indian Penal Code (IPC) Act is followed instead of POSCO because other sections of IPC are also applied on the accused.
• The police officer is the first person who takes action on the case and they must file an FIR under section 498A of the IPC. The police officers and other people associated with it should have emotional quotient and deal with the complaint maturely with no bias.
• From gyneacologists to police officers to doctors to advocates everyone should discuss various procedures to establish separate legal entity for marital rape and how to deal with such a sensitive issue.
• One should not protect a man by saying it is spouse rape. This weakens the ability of the woman to protect herself. It’s an irony that while sexual assault is a crime but raping a wife has no legal repercussions.
• If she bears injury marks that may appear during a struggle, her side of the argument will become stronger. Wounds including those on the hands, face, near private parts, bruising, soreness, black eyes, fracture, miscarriages, stillbirths and infections are important factors that can be taken into account. However, where such clear medical evidence is not there, one may rely on circumstantial evidence. A lot will depend on quality of investigations
• Sometimes, the wife is compelled to withdraw the complaint under extreme pressure from her family and in-laws. Others give up their fight midway on the grounds that they are solely dependent of their husbands and have a child to look after. At this stage the court takes the decision on the basis of the investigation done by the police officer.

(Some names have been changed to protect the victims’ identity)