THE BLOG
24/02/2018 11:15 AM IST | Updated 24/02/2018 2:45 PM IST

Data On Sexual Violence In Marriages Shows Why India Should Progress Towards Criminalising Marital Rape

Grim reality.

Pacific Press via Getty Images

theMarital rape refers to any unwanted sexual act/s committed by a husband upon his wife without her consent. Such sexual activity is done using force, a threat of force, intimidation, or when a person is unable to consent. The sexual acts include intercourse, anal or oral sex, forced sexual behaviour with other individuals, and other sexual activities that are considered by the victim as degrading, humiliating, painful, and unwanted. According to the UN Women's 2011 report, out of 179 countries for which data was available, 52 had amended their legislation to explicitly make marital rape a criminal offence. India is one such country where marital rape is yet to be even recognised, least criminalised. Section 375 of the Indian Penal Code (IPC), which defines rape, makes an exception for marital rape by stating, "Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."

The Law Commission of India, in its 172nd Report on "Review of Rape Laws" in March 2000 did not recommend criminalisation of marital rape. However, the Justice J.S. Verma Committee, while giving its report on "Amendments to Criminal Law" in January 2013, recommended that the rape law ought to be amended to delete the marital rape exception irrespective of the age of wife. In March 2013, a Parliamentary Standing Committee on Home Affairs in its 167threport on the Criminal Law (Amendment) Bill, 2012, observed that if the marital rape was brought under the law, the entire family system would be under great stress.

In August 2017, the Centre, in an affidavit filed in response to pleas seeking to criminalise marital rape in the Delhi High court, stated that marital rape cannot be made a criminal offence as it could become a phenomenon which may destabilise the institution of marriage and an easy tool for harassing husbands.

On October 11, 2017, the Supreme Court of India, in the case Independent Thought V. Union of India, ruled out that "sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not" stating that the exception in the rape law was arbitrary and violative of the constitution. Before passing this judgement, the IPC legally allowed a husband to rape his minor wife if she was between the ages 15-18 years old. However, during the hearing of the case, the Supreme Court despite taking a strong position and criminalising sex with a wife who has not attained the age of 18, showed reluctance in extending this argument to adult marital rape. Now the exception 2 to Section 375 of the IPC, allows a husband to have sexual intercourse with his wife who is above 18 years of age even if she doesn't consent for it and it will not be considered as rape. But data collected through National Family Health Survey 4 in the year 2015-16 on various aspects of women's empowerment and domestic violence shows that marital rape needs to criminalised in India.

Attitude of Indian Men Towards Wife Refusing To Have Sex

During National Family Health Survey (NFHS) 4, Indian men were asked specific questions to assess their gender egalitarian attitudes. In particular, men were asked, if a woman refuses to have sex with her husband when he wants her to, does he have the right to display the following four different behaviours: use force and have sex with her even if she doesn't want to; get angry and reprimand her or refuse to give her money or other means of financial support.

At an all India level, 9 out of every 100 men, agree to the fact that a husband has the right to use force and have sex with his wife even if she doesn't want to. At the state level, 28.5% men in Andhra Pradesh, 25.6% in Telangana, 19.3% in Mizoram, 17.1% in Tripura, 14.8% in Jammu & Kashmir (J&K) and 12.1% in Tamil Nadu agreed that a husband has the right to use force to have sexual intercourse with his wife.

The survey further noted that, at an all India level, 11 out of every 100 men agree to the fact that a husband has the right to refuse financial support to his wife if she refuses to have sex with them. At the state level, 28.3% men in Andhra Pradesh, 30.7% in Telangana, 18.3% in J&K, 17.9% in Tripura, 15.7% in Mizoram and 14.5% in West Bengal felt the same.

Percentage of Men Who Think They Have A Right To Use Force
Source: National & State Reports, NFHS 4

Similarly, 18 out of every 100 men across India believe that a husband has the right to get angry and reprimand his wife if she refuses to have sexual intercourse with her husband. At the state level, 43% men in Andhra Pradesh, 42.6% in Telangana, 29.5% in Mizoram, 21.75 in J&K, 20.3% in West Bengal and 19.9% in Karnataka felt the same way.

An important indicator of empowerment is the rejection of norms that underlie and reinforce gender inequality. One such gendered norm is husbands' "right" to control their wives in various ways, including through violence. During the National Family Health Survey men respondents were asked if they agreed to the fact that a husband is justified in hitting or beating his wife if she refuses to have sex with him. Nine out of every 100 men across India agreed that a husband is justified in beating his wife if she refuses to have sex with him. At the state level, 19% men in Telangana, 16.1% in Karnataka, 16% in Andhra Pradesh, 11.8% in Madhya Pradesh and 11.6% in Haryana thought the same.

Percentage of Men Who Justified Wife Beating For Sex & Who Believe Women Can't Refuse Sex With Their Husbands If She Was Tired/Not In The Mood
Source: National & State Reports, NFHS 4

The survey also reported that 15 out of every 100 men in India do not agree to the fact that a wife is justified in refusing to have sex with her husband when she is tired or not in the mood. At the state level, 37.4% men in Tamil Nadu, 32.1% in Karnataka, 26.1% in Arunachal Pradesh, 24.1% in Assam, 19.7% in Nagaland and 18.7% in Bihar felt the same.

Incidences Of Sexual Violence

The NFHS 4 collected data from married women aged between 15-49 years of age on whether their husbands have ever done the following to them -- physically force them to have sexual intercourse with them even when they did not want to; physically force them to perform any other sexual acts they did not want to; force them with threats or in any other way to perform sexual acts they did not want to.
Five out of every 100 women in India reported that their husband had physically forced them to have sexual intercourse with him even when they didn't want it. At the state level 11.4% women in Bihar, 10.6% in Manipur, 9% in Tripura, 7.4% in West Bengal, 7.3% in Haryana and 7.1% in Arunachal Pradesh reported that they were physically forced by their husbands to have sexual intercourse with them even when they did not want to.

In India, 2.5% women reported that their husbands physically forced them to perform any other sexual act which they didn't want to do. At the state level 5.1% women in Bihar, 3.8% women in Karnataka, 3.7% women in Arunachal Pradesh, 3.3% women in Madhya Pradesh and Tamil Nadu respectively reported that their husband physically forced them to perform any other sexual act which they didn't want to do.

Percentage Of Married Women Between 15-49 Of Age Who Have Experienced Sexual violence Committed By Their Husbands
Source: National & State Reports, NFHS 4

Similarly, 3.6% women at all India level reported during the survey that their husband forced them with threats or in any other way to perform sexual acts which they did not want to do. At the state level, 8% women in Manipur, 7.1% in Bihar, 5.8% in Odisha, 5% in Karnataka etc. reported that their husband forced them with threats or in any other way to perform sexual acts which they did not want to do.

Physical Injuries Due To Sexual Violence Committed On Them By Their Husbands

The NFHS 4 reported that 36.5% of the ever-married women in the age 15-49 years who have experienced sexual violence ever suffered from cuts, bruises or aches due to the sexual violence committed by their husband on them. Similarly, the survey reported that 8.3% of the women suffered from severe burns, 21.8% with eye injuries, sprains, dislocations, or burns and 14.8% women suffered from deep wounds, broken bones or broken teeth due to the sexual violence committed on them by their husband.

Around 78.6% of the ever-married women in the age group, 15-49 years who have faced sexual violence in their life never told anyone about it. Just 12.3% of the women sought help from any source. Out of the women who sought help, 48.2% sought help from their own family, 25.8% from their husband's family, 32.8% from their friends and just 0.9% from the police, 0.5% from a lawyer and 1.3% from a social service organization.

The analysis presented here clearly reiterates the demands made by the various social activists from India and across the world that any sexual act by the husband without the wife's consent within the institution of marriage should be criminalised in India irrespective of the wife's age. The shameful argument made by the Centre that criminalising marital rape would end up in harassment of husbands and destroying the institution of marriage does not hold ground if one looks at the data collected by NFHS. Countries like Australia made rape in marriage a criminal offence as early as 1976, while since 1980s many common law countries have legislatively abolished the marital rape immunity. These include South Africa, Ireland, Canada, the United States, New Zealand, Malaysia, Ghana, and Israel. The time has come for India when the various stakeholders in this country should accept the fact that marital rape exists and proceed unanimously towards criminalizing marital rape. After all 'A NO MEANS NO' whether it is said outside the institution of marriage or within the institution of marriage.

(The opinions expressed in this post are the personal views of the author. They do not necessarily reflect the views of HuffPost India. Any omissions or errors are the author's and HuffPost India does not assume any liability or responsibility for them.)