The latest round of the National Family Health Survey (NFHS-4) reveals some disturbing statistics about spousal violence. It shows that 31 per cent of ever-married women have experienced physical, sexual or emotional violence at the hands of their spouse, with physical abuse being the most common. Overall, experience of physical or sexual violence by spouses has reduced from 37 per cent in 2005-06 to 29 per cent in 2015-16. However, the decline has been minimal for women experiencing spousal physical or sexual violence during the 12 months prior to the survey (24 % in NFHS-3 versus 22 % in NFHS-4). Injuries, ranging from sprains to broken bones and burns, have been sustained by nearly 25 per cent of women who have ever suffered from spousal violence.

Another startling revelation made by the Survey is that 83 per cent of ever-married women between the ages of 15-49 years who have ever experienced sexual violence reported their current husband as the perpetrator with another 7 per cent reporting their former spouse. The most common form of reported sexual violence was the use of physical force by the husband for sexual intercourse against the will of his wife.

While the issue has been widely debated, these numbers once again highlight the need for seriously considering a legislation criminalising marital rape in India. Currently, Section 375 of the Indian Penal Code (IPC) that pertains to rape, has an “exception provision” because of which it is not applicable to sexual intercourse or sexual acts by a husband with his wife provided she is not under 18 years of age. Till very recently, this exemption also applied to a married minor girl above 15 years, however, it was modified to align it with the Protection of Children from Sexual Offences Act, 2012 as well as other pro-child legislations. This modification can perhaps also pave the way for a broader fact-based discussion, on an adult marital rape law, informed by global experiences. In doing so, some key issues need to be considered.

MARITAL RAPE, WHERE IN THE WORLD IS IT LEGAL?

Firstly, a larger number of countries have passed laws making marital rape a criminal offence as compared to those that have not. Poland was the first to introduce such a legislation in 1932, followed by many Scandinavian nations and Australia in the 1960s and ‘70s. The trend continued into the 1980s and beyond with the United States, Canada, South Africa, New Zealand, among others, striking down the marital rape exemption from their laws. In 1991, even the United Kingdom, which had hitherto adopted Sir Matthew Hale’s ‘Implied Consent Theory’, recognised that marriage does not imply that a woman consents to all sexual activity automatically. Closer home, Nepal’s Supreme Court made marital rape a punishable offence in 2002. These countries have taken a huge step forward by recognising that rape, regardless of marital status, is about violence, not morality.

Second, the significance of a marital rape law in signalling to society that a woman’s consent and autonomy matters cannot be undermined. According to the NFHS-4, 59 per cent of women between 15-49 years are still not “allowed” to go to a market or health facility by themselves. Yes, this is an improvement over 2005-06 when 67 per cent of women did not have freedom of movement but the numbers are still appalling. Further, 52 per cent of women and 42 per cent men are of the view that violence by the husband is justifiable in a variety of situations, including if the wife refuses to have sex with him. What is especially worrying is that these attitudes have not improved significantly since NFHS-3.

MISUSE OF POTENTIAL LAW AGAINST MARITAL RAPE

Third, an argument that often comes in the way of a marital rape legislation is potential misuse by women. It seems grossly unfair to assume that women would want to destabilise their own marriages by slapping false cases against their husbands. Walking out of a marriage by filing for divorce is perhaps easier than attempting to manipulate the law. Some women might try to do so, but it is unlikely that the majority will. In fact, data points to the fact that fewer women are reporting even genuine cases of physical or sexual violence. As per NFHS-4, only 14 per cent women who experienced violence attempted to seek help, down from 24 per cent in NFHS-3.

All laws have the potential to be misused. Why then does this get raised vociferously only in the context of an enabling legislation for women. It is for the police to determine the veracity of an allegation made by a woman and subsequently register a complaint under the relevant sections of the law. At least part of the answer lies in ensuring that the police and law enforcement agencies are equipped to discharge their duties effectively. Additionally, we need quantifiable data to determine how real and significant the misuse problem really is by analysing at least a few hundred cases of violence against women. While some cases of potential misuse of the anti-dowry provisions under Section 498A of the IPC have come to the fore, it has also provided tremendous respite for a large number of women who were experiencing physical or mental torture in their matrimonial homes and did not have any other recourse.

PROVING CHARGES OF MARITAL RAPE

Another challenge, widely talked about is proving that a married woman has been raped. Circumstantial evidence would play an important role in building the case, similar to any other instance of alleged rape. There might also be a history of physical violence or sexual abuse, which can be established by forensic evidence. Further, witness testimonies could be taken into account. It is, of course, important to note that just because a crime is difficult to prove does not mean that it can be ignored altogether.

Following the horrific Delhi gang rape of December 2012, the Justice J S Verma Committee had recommended doing away with the marital rape exemption from law. While all possible safeguards should be in place for ensuring that no innocent man is wronged, every effort also needs to be made to ensure that a woman’s freedom and right to life is not compromised. Marriage is undoubtedly an important institution but violence of any kind should not be condoned by a civilised society. After all, rape is rape, regardless of whether the perpetrator is a stranger or a spouse.

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