‘I was a servant, a sex machine and a punching bag’: Why marital rape is still legal in India

By — June 22, 2016

Lights! Camera! Action! The life of a Bollywood stuntwoman outside the realm of film sets and the silver screen caught India’s attention last month when a video done by the lifestyle channel Blush captured her struggle behind the screen. Geeta Tandon spoke about her marriage at the age of 15 and surviving domestic abuse, including rape, from her husband.

“I was a servant, a sex machine and a punching bag present to fulfill his needs,” Tandon says. “I got pregnant at 16, and was briefly happy, thinking it would stop the beatings. But it only got worse.”

Tandon said she tried to leave her husband three times and even complained to the police. There, she said, she was told that “marital fights should be kept within the walls of the house. I stopped trying to register complaints as I had no support.”

Tandon’s YouTube video has gotten nearly 400,000 views since it was published on May 30. But, most important, what her story did was reignite the debate about why an archaic law that does not criminalize rape in marriage still exists in India.

A still from the Blush video shows Geeta Tandon, who left her husband after enduring five years of domestic violence. (Blush/YouTube)

When a woman in India gets married, she puts herself at risk of becoming a victim of sexualized violence with little legal recourse. India does not criminalize marital rape and still adheres to the British common law, which states that the contract of marriage includes a husband’s “right to sex.” The concept originates in the common-law principle of marriage as “coverture,” the idea that the woman is always under the husband’s protection and authority. Matthew Hale, chief justice of England in 1736, issued a dictum that said a man can never be guilty of raping his lawful wife “for by their mutual matrimonial consent and contract, the wife hath given herself up in this kind unto her husband which she cannot retract.”

This statement, popularly known as the Hale Doctrine, represented a common-law marital rape exemption, under which husbands could not be accused of committing the crime of rape against their wives. Many countries, including the U.S., initially adopted this, yet over time 52 countries have done away with it. Britain itself changed its law in 1991, making marital rape a crime.

India, unfortunately, still abides by it.

In 2014, Aashish Gupta, with the Research Institute for Compassionate Economics, compared Indian National Crime Records Bureau (NCRB) statistics on officially reported cases of violence against women with data from the 2005 National Family Health Survey (NFHS) in which women respondents were asked if they faced physical or sexualized violence. Gupta’s study found that 6,590 per 1 million women said their husbands had forced sexual intercourse on them. Only 157 reported rape by men other than their husbands. 

This means that the number of women who experience sexualized violence by husbands is 40 times the number of women who experience sexualized violence by non-intimate perpetrators. In 2005, just over 2 percent of all rapes experienced by women in India were by men other than their husbands, according to the study. Gupta also inferred from his study’s findings that less than 1 percent of rapes by husbands are reported. He said that since marital rape was not recognized as a crime in India, it was probably reported as “cruelty.”

A recent Women, Business and the Law study by the World Bank shows the scope of global laws on marital rape by addressing crucial questions such as “Can the wife file a criminal complaint against the husband?” and “Does the law explicitly criminalize marital rape?” (For India, the answers are “No” to each question.)

Section 375 of the Indian penal code, which defines rape, has an exception clause that states: “[S]exual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” Currently in India, marital rape can be registered under cruelty clauses of Section 498A of penal code. Cruelty, though not specifically defined, covers physical and mental harassment and stipulates that physical or mental cruelty committed against a woman by her husband or a member of his family is punishable by up to three years in prison.

Under the Protection of Women from Domestic Violence Act of 2005, sexualized violence is a non-criminal violation. If a wife complains, the court can summon the husband. Once the complaint is heard—the presence of lawyers is not mandatory—the case is referred to a mediator for resolution. If mediation fails and the complaint is found to be correct, the court passes a protection order, directing the man to correct his conduct. This is treated as a civil case—not a criminal one—and is legally binding. But if the court’s order is violated, the wife can return to the court, which can result in a criminal case and a short imprisonment.

Successive governments in India have avoided addressing the issue of criminalizing marital rape. After the 2012 Delhi gang rape, a 2013 report on sexualized violence laws, published by the Justice Verma Committee, a panel set up after the rape in response to the huge public outcry, recommended removing the exception clause in Section 375 of the penal code, which decriminalizes marital rape. Yet the government left that clause in place when it amended the penal code that year.

In December 1993, the United Nations High Commissioner for Human Rights published the Declaration on the Elimination of Violence Against Women (DEVAW) and declared marital rape to be a human rights violation. DEVAW specifies that UN members have a duty to exercise “due diligence to punish acts of violence against women, even if those acts are perpetrated by private persons.”

This was further reinforced in 1995 under the Beijing Declaration and Platform for Action, which was adopted by 189 UN member states including India. The Beijing Declaration recognized that violence against women, including marital rape, is a manifestation of the unequal power relations between men and women and demanded that states punish perpetrators and provide women with access to justice.

In July 2014, the U.N. Committee on Elimination of Discrimination Against Women recommended that India change its stance on marital rape. As recently as March, Helen Clark, chief of the United Nations Development Programme, said that India would run afoul of the Sustainable Development Goals it has adopted if it does not amend its marital rape law.

The issue of criminalizing marital rape in India has been debated a lot in Indian Parliament. In March, Maneka Gandhi, the minister for women and child development, said, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, e.g., level of education/ illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat marriage as a sacrament, etc.”

Then, in May, Gandhi issued a statement saying that “incorporating cases of marital rape within the legal framework would put stress on the family system and strain family ties.”

In a patriarchal society like India, sexual rights for women are very difficult to achieve. The 2015 Gender Inequality Index, published by the United Nations Development Programme, ranks India at 130 out of 155 countries. Women are often reluctant to report sexual assaults or cruelty in marriage, pressured by the social norms of marriage, tradition, and culture. A gender-biased criminal justice system makes it all the more difficult for women to come forward and fight for justice. While some positive steps have been taken, much more needs to be done in the legislative sphere. Criminalizing marital rape would be the first crucial step.