Does a husband have the right to have sex with his wife, regardless of her wishes, and even if she is a child? Current debates that hinge on what is the right age to be able to give consent to sexual intercourse are not new. Back in 1891, about 200,000 people converged on Kali Ghat in Calcutta to perform a puja, as a culmination of three months of vehement protests against the amendment of Section 375 of the Indian Penal Code (IPC), which raised the age of consent for girls from 10 to 12 years. The reforms had important political implications, framed as an opposition to the imposition of British values on an increasingly restive populace.
Revivalist nationalists mobilised against what they saw as undue colonial interference in Indian culture. The impetus for the reform of the IPC was the child-marriage in 1889 of 10-year-old Phulmoni Dasi who died after being raped on her wedding night by a husband three times her age. Hari Mohan Maiti, 30, was sentenced to 12 months hard labour for causing “grievous hurt” to his wife. Following the ‘Age of Consent’ Bill passed on March 29, 1891, the definition of rape included girls under 12, even if the perpetrator was the husband of the victim and the crime was punishable by a maximum of 10 years’ imprisonment or transportation for life. Now, 125 years later, debates about the age of consent continue, since consent is — or should be — the defining factor to establish rape. On August 9, 2017, the Central government told the Supreme Court that a man forcing his minor wife to have sex should continue to be exempted under IPC Section 375 (rape) if she is above 15 years of age. This appalling response was made to a petition filed by Independent Thought, a Delhi-based NGO, which appealed to the apex court to bring all minors, irrespective of marital status, under Section 375. The Centre held that this exception was to “protect the institution of marriage”, claiming that the husbands in the estimated 23 million child marriages in India would be liable to prosecution for statutory rape.
Currently, even though child marriage is a crime, husbands of children between the ages of 15 and 18 years cannot be charged with rape due to the exception to Section 375, which remained on the statute books even after the Criminal Law Amendment of 2013, which increased the age of consent to 18 years. Simultaneously, a “child” is defined as a person below 18 years of age under the Protection of Children from Sexual Offences (POCSO) Act, 2012, and the act declares that “penetrative sexual assault” and “aggressive penetrative sexual assault” against children below 18 is rape.
Marital rape is criminalised in countries considered “civilised” or “developed”, such as Austria, Australia, Belgium, Sweden, Norway, the UK and the US, but also in Serbia, Sierra Leone, Liberia. Statistics on marital rape are hard to come by in India, given the notion that the husband has a right over his wife’s body. However, some studies by health professionals provide a glimpse into this otherwise invisibilised crime. Dilaasa, an initiative of Mumbai-based Centre for Enquiry into Health and Allied Themes in collaboration with selected municipal hospitals studied 1,675 married women between 2001 and 2010. Domestic violence reported by them included forced sexual intercourse reported by 27 per cent women and 26 per cent reported being attacked with instruments and objects inserted into the vagina.
Out of 218 cases of domestic violence registered by the Mumbai-based NGO Sneha in 2015, about 30 percent reported being raped by their husbands. If an astounding 28.8 per cent or close to a third of almost 700,000 women surveyed during the recent National Family Health Survey (NFHS-5, 2014-15), reported having experienced spousal violence, given the insights from micro studies, it might reasonably be assumed that a significant number of these women would also have experienced marital rape. This assumption gets further heft if data released by the National Crimes Record Bureau is considered. Of the 34,651 rape cases reported in 2015, offenders were known to the victims in 95.5 per cent cases.
Marital rape is a form of abuse that is not recognised as a specific crime under Indian statutes, despite it being a long-standing demand of the women’s movement. While the Justice Verma Committee in 2013 recommended the deletion of the marital rape exception in Section 375 and a private member bill in 2015 sought a similar amendment, the home ministry has asked the Law Commission to come up with comprehensive recommendations.
Currently, women raped by their husbands can seek recourse under the Protection of Women from Domestic Violence Act, 2005, which defines “sexual abuse” as “any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman”. Section 498A, popularly but erroneously termed the “anti-dowry” law, allows for the prosecution of a husband subjecting his wife to cruelty, which is defined as “any wilful conduct which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman”. The difficulties in reporting marital rape are innumerable. From economic dependence on the husband; custody of children; need for a roof over the head to complex emotional and psychological bonds, women find it difficult to report and prove marital rape. The chances are even lower when they want the sexual violence to stop while continuing in the marriage. While defining criminal acts serves the purpose of circumscribing what is unacceptable in society, criminal law might not always be the best path to achieving gender equity or reciprocal sexual relations. It will require men to give up their sense of entitlement over women’s bodies, and for women’s sexual desire — both within and outside marriage — to be allowed expression.
(Laxmi Murthy is a senior journalist based in Bengaluru. She has been active in the women’s movement for more than 30 years.)