New Delhi: “Physically forced her to have sexual intercourse with him even when she did not want to.”

This is a category of spousal violence which the Indian government records data for. And according to the latest National Health and Family Survey (NFHS-4) for 2015-16, 5.4% women have experienced marital rape, under this category.

But while the data on marital rape in India exists, marital rape as a crime, “does not exist”.

“The form of sexual violence most commonly reported by women was that their husband used physical force to have sexual intercourse when they did not want to,” says the survey.

In fact, the existence of marital rape is being contested in the Delhi high, where petitions seeking its criminalisation are being heard. On behalf of the Union government, the Women and Child Development Ministry says the crime and the very idea of it “cannot be suitably applied in the Indian context”.

And yet 5.4% of married Indian women say they have experienced marital rape. 4.4% of them say they have experienced marital rape in just the last 12 months before this survey. The figure recorded by NFHS-3 for 2005-6 was 9.5%.

These numbers are far from accurate, not just due to under-reporting but also because they do not give the entire picture of the extent of marital rape. It is likely that these women have experienced marital rape multiple times over. This is because these crimes occur in intimate spaces and with the same person.

The data also records for the categories of “forced her to perform any sexual acts that she did not want to” and “forced her with threats or in any other way to perform any sexual acts that she did not want to.” Overall, 2.5% and 3.6% of married Indian women answered affirmatively to these categories as well.

That takes the percentage of married women who have experienced what would be considered rape or sexual violence had the perpetrator not been their husband up to 11.5%.

Marital rape exists in the data, but not in law

Despite the brutal gangrape and death of ‘Nirbhaya’, the massive protests, the uproar in parliament and the Justice Verma Committee (which did in fact recommend criminalising marital rape), India’s parliamentarians just could not find it in them to treat married and unmarried women equally, on matters of rape.

Married women have been made a special category in the law. The Criminal Law Amendment Act 2013, which parliament quickly passed after the death of Nirbhaya, left intact the Indian Penal Code exception on matters of rape of married women.

“Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape,” says the law, while explaining the various instances of: “A man is said to commit “rape” if he…”

In the event of the law denying the reality of sexual violence within marriages, “Married women only have the option of using section 498A of the Indian Penal Code, which lays down provisions on cruelty, if they need to allege sexual violence against their husbands,” says Kavita Krishnan, secretary of the All India Progressive Women’s Association.

And although Section 377 is known as the law which prohibits “gay sex,” it in fact prohibits “unnatural sex,” an act which can take place between straight people as well. “Sometimes women have used Section 377 if they want to press charges of rape against their husbands,” says Krishnan.

The facts on spousal sexual violence

Sexual violence of course gets progressively worse if the husband is an alcoholic – 66% of married women experienced physical or sexual violence when “husband gets drunk often”.

Manipur fares the worst among all states in terms of women who have said they have been victims of physical, sexual or emotional violence. 55% of married Manipuri women have been victims to these kinds of violence. Sikkim has the lowest number of victims at 3.5%.

A very small percentage of women seek any kind of help for the violence they have experienced. Victims of sexual violence are the most reluctant to seek out help – only 10% of married victims of sexual violence seek help.

What other kinds of spousal violence, and in which states?

In the category of spousal violence, the National Health and Family Survey records both sexual and non sexual violence. The survey has looked at married women in the age group of 15-49.

The highest form of non-sexual violence comes from men slapping women – 25% of women surveyed said they have been slapped.

In all, 12% of married women said they have been pushed, shaken and have had things thrown at them. 10% said the husbands have pulled their arms or hair. Another 7.5% said they have been punched with fists or objects and 7.% said they have been kicked, dragged and beaten up. More so, 1.5% said they have been choked or burnt and 0.8% said they have been threatened or attacked with guns, knives and other weapons.