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In India, where divorce is rare, a debate ignites over marital rape

In this photograph taken in 2016, a victim of marital rape poses near her home in New Delhi. (Chandan Khanna/AFP/Getty Images)

NEW DELHI — A heated case underway this week in one of India’s high courts over whether to criminalize marital rape has prompted men to declare on social media that they would go on strike — from marriage.

Marital rape is a crime in many Western countries, including the United States, Britain and Canada. But India is among nearly three dozen countries in the world where spouses cannot file a criminal complaint against their partners for nonconsensual sex.

A high court in Delhi will decide whether to eliminate the marital rape exemption from the country’s rape laws, which were reformed in the aftermath of a brutal gang rape and murder in 2012.

Men’s rights group, however, are arguing that making nonconsensual sex a criminal offense would be tantamount to turning husbands into “rapists” and will lead to the breakdown of the institution of the family.

A boycott of marriage is “necessary,” thundered one social media user. Another took aim at feminists, saying the strike was the only solution to end their “agenda.”

“Men don’t want to get married because their human rights are not getting protected,” said Anil Murty, 50, a tech entrepreneur and co-founder of the Save Indian Family Foundation, which campaigns for making laws gender-neutral.

The petitions challenging the exemption say it is unconstitutional and violates the fundamental rights of women.

“Every act of violence should be punished,” said Kirti Singh, legal adviser to All India Democratic Women’s Association, one of the petitioners. Singh said there is no basis to treat rape within marriage differently from rape outside it.

The ongoing court case has ignited a rare debate about consent in spousal relationships and female sexual autonomy in India, where divorce is rare.

A majority of marriages in the country are arranged by parents and families and take place within the rigid class and caste hierarchies. Premarital sex is not common, and most sexual encounters take place within marriage. Only 1.1 percent of Indian women were divorced in 2010, according to the most recent U.N. data.

While in recent decades India has rapidly transformed into one of the world’s largest economies, changes in societal practices and attitudes have been slower. Women in India today are better educated and have more rights than before, but the rate of female participation in the labor force is dismal and sexual violence against women is widespread.

A woman interviewed 100 convicted rapists in India. This is what she learned.

Singh, the adviser to the petitioner, pointed to laws on domestic violence in questioning the exemption. “The law has recognized that violence in marriage is wrong. Rape is a gross act of violence,” she said.

A lawyer for a men’s rights group opposing the petition said that forced sex within a couple could at best be called “abuse” and that women could take recourse within existing laws. He said the provision protected the institution of marriage, which is “important not only for the couple but for the family, which includes children and parents also.”

In line with global trends, 1 in 3 married women in India have faced violence at the hands of their spouse, according to government statistics. Domestic violence offenses in India are governed by a different set of laws than sexual violence and rape.

The section of the law criminalizing acts of physical or mental cruelty, including dowry-related harassment by a husband or his relatives, was formulated in response to deaths that continued even after dowries were outlawed in 1961. Thousands of women are still killed every year in disputes over dowries — or, in India, the practice of gift-giving by the bride’s family.

But men’s rights groups point to the same law to argue against criminalizing marital rape. The groups claim that the domestic violence law is misused and that a new offense of marital rape would become a tool for women to file fake cases against men to extort money or otherwise blackmail them.

She was raped at 13. Her case has been in India’s courts for 11 years — and counting.

Murty, the men’s rights activist, said the domestic violence law had turned men into “second-class citizens” in India as they had no recourse if they were abused at home. “This will lead to a gender-war situation,” he said.

Women’s rights groups that work on the issue say concern over the filing of fake cases doesn’t match the reality on the ground.

Nayreen Daruwalla, the program director for prevention of violence against women and children at SNEHA, a group working in poor areas of Mumbai, said societal concerns often hamper women from reporting gender-based violence of all forms.

Women use formal reporting mechanisms only when they have depleted other resources, Daruwalla said. “It is an issue of honor and shame,” she said. “There is fear of the husband and family.”

More than 111,000 cases were filed under the domestic violence law in 2020, according to data from the national crime record bureau, the latest such figures available. Even as police filed charges in majority of the cases, the conviction rate under this section remains low.

The central government in 2017 opposed the demand to criminalize marital rape but has now asked the court for time to consult stakeholders.

Meanwhile, the war of words on Twitter continues. The Save Indian Family Foundation has proposed a new family structure that would exclude wives.

Indian women fired back.

Read more:

Two years after infamous Delhi gang rape, India isn’t any safer

‘Have pity on me’: When a dowry dispute in India turned deadly

In India, it’s not easy to report on rape