Why is this a country where a man can walk free after his wife dies due to alleged sexual assault on their marital bed? It's high time we criminalise marital rape, say activists and lawyers
While the debate rages on, those who have worked with women on ground say that very few survivors reach out for legal recourse. Representational pic/iStock
A shuddering 26-year-old woman is held in the arms of two others in a hotel room in Mumbai. The other two women try to fight off their own tears as they desperately grapple with the revelation that the young, London-educated woman they had met for the first time had been raped, repeatedly, by her husband.
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“It was shock, anger and helplessness—all at once,” recalls, Arati Kadav, the director of the 2024 film, Mrs, which dwells on the subject of marital rape, among other issues. Kadav and Sanya Malhotra, the film’s lead actor, were researching for the movie but were devastated by the survivor’s account.
“We wanted to meet her because she was going to talk about the unequal distribution of domestic labour, since it is such a big part of both the original Malyalam film [The Great Indian Kitchen] and our adaptation,” says Kadav over the phone. “We found a few women willing to speak and set up a meeting with them individually in a hotel room, without any men in the room. It began with her [the survivor] talking about the labour, but we could see that she wanted to talk about something more. She began howling as she opened up; I think just talking about it was freeing for her. I broke down too,” Kadav adds.
Those who are working with marital rape survivors say criminalisation is needed. Representation Illustration/iStock
Just days after the OTT film’s release on February 7, the Chhattisgarh High Court on February 11 freed a man who had been convicted by a trial court of rape and unnatural sex with his wife, leading to her death. The HC, however, pointed out that marital rape is not a criminal offence as per the country’s laws and quashed the conviction.
The ruling has caused huge outrage across the nation. This furore comes after a year of the world watching—and supporting—French woman Gisele Pelicot in her fight for justice against her husband Dominique Pelicot, who drugged and raped her multiple times over nine years, and also arranged for her mass rape by scores of other perpetrators. Dominique was sentenced to 20 years in prison, and Gisele was hailed as a feminist champion for her fight to shift the stigma of rape from survivors to the perpetrators with her now famous line: “Shame must change sides.”
In India, on the other hand, there are no words to describe the anguish of survivors—we do not have the legal language to describe marital rape; it simply does not exist as per our law.
Mrs, released in February, has touched upon marital rape
Those who work in the sphere of social justice and see the physical, financial, and sexual abuse meted out to women, resoundingly agree that this is one of the greatest failures of the Indian judiciary, legislative and society at large.
In October 2024, the Centre for the first time spelled out its stand on marital rape before the Supreme Court, arguing that applying the stringent penal provisions of rape within marriage would be “excessively harsh” and could have serious socio-legal implications on the institution of marriage. The fear some have cited is that if marital rape were to be criminalised, there was potential that it would be misused to entrap men in false cases.
Trisha Shetty, lawyer-activist and founder of women’s rights organisation SheSays, counters, “The fear that criminalisation of marital rape will mean that women will suddenly get up and register cases against their husbands is unfounded. The truth is we are uncomfortable talking about violence within marriages. A woman must have autonomy over her body regardless of her marital status,” Shetty tells us.
Trisha Shetty; Persis Sidhva; Sangeeta Rege
The data backs Shetty’s statement. A 2014 working paper by A Gupta, titled Reporting and incidence of violence against women in India, compared data from the National Family Health Survey (NFHS) and National Crime Record Bureau (NCRB), which indicate that less than one per cent of cases of sexual violence by the husband are reported to the police.
A joint report by Dilaasa (a crisis centre for women), and Centre for Enquiry into Health and Allied Themes (CEHAT) seems to be the only exhaustive documentation of marital rape. The report, compiled from data from three public hospitals in Mumbai between 2008 and 2017—found that out of 1,664 rape survivors, only 18 women had reported being raped by their husbands and sought medico-legal support.
Sangeeta Rege, one of CEHAT consultants documenting on-ground data from the BMC hospitals, reveals that most survivors had also experienced other kinds of violence— financial, emotional, physical and sexual. “About 70 per cent of women disclosed sexual violence in marriages when they came to seek help for domestic violence. Sexual violence does not occur in isolation and is often accompanied by physically emotional and financial violence,” she explains.
It’s clear that problem is real when we read between the lines and statistics. The 2019-21 NFHS report shows that nearly one out of five Indian women cannot refuse their husbands sex. Over a third of the male population cannot accept their wives turning their sexual advances down, and six per cent believe they have the right to force their wives into sex. These are not the beliefs of a generation gone by—the sample age group for the survey was 15-49 years.
Despite the apparent frequency of sexual violence among married couples, survivors are apprehensive about filing a complaint. “Of the 18 women [who had confided about marital rape], only eight said they wanted to record a complaint. So there is no evidence that women misuse the law and file a marital rape as a weapon against men,” adds Rege.
Child and Women’s rights Advocate Persis Sidhva, tells Sunday mid-day that most women do not reveal the marital rape aspect even when they go to court to register domestic violence complaints against their husbands.
“I had represented a woman in a domestic violence case for almost one-and-a-half years, and it was only after all that time fighting her case that she finally told me she had been raped by her husband. She said it was only later that she realised that it was rape. She felt safe enough to tell me about it because she and I were in the fight together. Most women take time to recognise marital rape as an offence and others who do, often don’t provide details fearing backlash,” says Sidhva.
There’s good reason women are hesitant to seek action against their husbands. In the Chhattisgarh case, despite the woman’s death after the alleged assault, her husband walked free. “Let us understand that in the Chhattisgarh case, the arrest was not for marital rape. Now, under the BNS, even ‘unnatural sex’ with an adult wife is not a criminal act. The fact is, there is no direct legal recourse to punish the act that caused her death,” says Sidhva.
She had hoped for more initiative from the Supreme Court during the October 2024 hearings on marital rape pleas, but was disappointed when the top court deferred the hearings and observed that it was not for the court to formulate law, and this was a matter for the legislature. “It was a split verdict. With one Judge striking down as unconstitutional the exception to marital rape under the IPC. However, the other Judge rejected the plea to criminalise marital rape by stating that any change in the law must be carried out by the legislature,” she adds.
Most women have come to terms with the fact that proving rape—and marital rape on top of that—is very difficult in India. Mrudula Sawant, centre in-charge, Dilaasa, KB Bhabha hospital
Hospital in Bandra, says, “Sexual violence within marriage is very common. However, it is the least spoken about. Marital rape is not a criminal offence under our law and socially also it is considered not to exist. But it creates an adverse impact on women’s physical and mental health.”
“We do not judge women who come to us for help,” SheSays founder Shetty shares, “We don’t even talk about them leaving their home. A woman in that situation is not leaving because of many circumstances. We concentrate on making these women financially independent; what they do with the independence is their call.”
“At the same time I must add, it is a moment of reckoning for us as a country,” adds Shetty, “It’s time to go beyond the argument of ‘If he is your husband, how
is it rape?’”
No legal protection
Legally, the Indian government does not recognise marital rape as an offence. It is an exception to the provision for rape under Section 375 of the British-era Indian Penal Code. This stems from the presumption that sexual consent is implied in marriage and cannot be withdrawn by wife who is 18 years or older.
The UK outlawed marital rape in 1991. India, despite reformulating its criminal code in 2024, has retained this regressive exemption in the Bharatiya Nyaya Sanhita (BNS). Section 63 of the new code excludes non-consensual sex between a husband and wife (aged 15 and above) from the definition of rape. To make matters worse, BNS has also omitted Section 377 (unnatural sex) of the IPC, which was the only legal recourse for women forced into sex by their husbands.
Mental and physical scars
A report by CEHAT and Dilaasa found that 41 per cent of marital rape survivors reported health complaints as a result of the “ongoing violence”. Of these, 28 per cent attempted suicide, 25 per cent reported reproductive health complaints, and one per cent attempted homicide.
“The direct health consequences are constant pain in the stomach, lack of appetite, urinary tract infections, sexually transmitted diseases and contraction of AIDS due to unprotected sex. Since many husbands refuse to use a condom, we are seeing a lot of men force their wives to undergo medical termination of pregnancy, and then the cycle continues,” says Dilaasa’s Mridula Sawant, adding that they also witness signs of self-harm among survivors.
A very real problem
18%
Of Indian women say they cannot say no to sex with their husbands
34%
Of Indian men say their wife has the right to refuse sex
6%
Of men believe they have the right to force their wife for sex
Source: NFHS-5 (2019-21); sample age group 15-49
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