A fact check on Maneka Gandhi’s U-turn on marital rape

Mumbai: A week ago, minister for women and child development Maneka Gandhi said that India cannot have a law to criminalise marital rape, citing various factors such as “level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament” and so on.

The minister’s stand is contrary to the recommendations of the UN Committee on Elimination of Discrimination against Women and the J.S. Verma Committee (formed after the December 2012 gangrape in Delhi).

Data shows that spousal violence is common in India. The latest round of the National Family Health Survey (NFHS-4) shows than even in wealthy states such as Tamil Nadu, about four out of every 10 married women experienced some form of spousal violence.

That married women have been facing domestic violence has been known for quite some time. NFHS-3 has data on marital rape as well. It shows that about one out of 10 married Indian women in the age group 15-49 years have been physically forced to have sex by their husbands.

About 27% have not faced sexual violence, but have faced physical violence. More than half of married women in 15-49 age-group reported injuries due to physical and sexual violence.

Data from Tamil Nadu, considered to be one of the more ”progressive” states in India, highlights, marital rape and domestic violence have minimal links with factors such as poverty and literacy.

The World Bank data shows that the 70 countries that have laws explicitly criminalizing marital rapes span a spectrum of income and literacy. Of the 70, 22 are in Europe, 22 in Latin America and North America, 15 are in Asia and Australasia and 11 in Africa.

Veena Gowda, a woman’s rights lawyer, argues that poverty or illiteracy cannot be used as excuses for rape.

“Is Gandhi saying that rich people do not commit marital rape? Moreover, the Protection of Women from Domestic Violence Act, 2005, recognizes sexual assault by a husband as an offence. So it’s not a question of creating a new offence of marital rape, but merely removing the exception to marital rape that exists within Section 376 of the Indian Penal Code,” she said.

Gandhi’s statement in Parliament also comes as a surprise given that she has in the past been vocal about criminalizing marital rape.

Even existing data suffers from under-reporting. A research paper by Ashish Gupta of the Research Institute for Compassionate Economics, titled ‘Reporting and Incidence of Violence Against Women in India’, examined this issue.

While NFHS-3 recorded 6,590 incidents (per 100,000 women in the age group 15-49 years) of sexual violence by husbands, NCRB recorded only 37.2 such instances per 100,000 women over a 12-month period. Thus, the reportage of spousal sexual violence as a percentage of total such incidents only amounts to 0.6%.

In terms of absolute numbers, using Census 2011 data on population of women aged 15-49 years, the total number of Indian women who have survived sexual violence by husbands stands at 20 million, a number as big as the entire population of Sri Lanka.

The actual number, though, is likely to be higher as this count includes women only in the age group 15 to 49 years. Moreover, Gupta’s paper also includes anecdotes from NFHS surveyors who responded that many were silent or uncomfortable about answering questions on sexual violence.

Some even broke down, but still refused to say if they had been violated physically or sexually. Moreover, as Chart 3 shows, the chances of facing physical or sexual violence increases with the duration of marriage.

What all this data—and Gupta’s analysis, in particular—points out is that the incidence of marital rape is much more common and less reported.

The number of women who survived sexual violence at the hands of their husbands was 40 times more than the number of women who faced sexual violence by others. While legal redress exists for rape outside of marriage, and as was seen in the aftermath of the December 2012 gangrape, there is little succor for women facing rape within the four walls of their home.

Vrinda Grover, a lawyer and human rights activist, argues that by not criminalizing marital rape, the state is sending out the message that upon marriage, the husband’s control and dominion over the woman’s body is absolute.

“The Protection of Women from Domestic Violence Act, 2005, can only offer a civil remedy to the problem of sexual violence. In not criminalizing marital rape, the legislature has abdicated its duty toward married women, and is effectively saying that marriage and family trump women’s rights. Marital rape is an issue that can’t be socially discussed easily by victims. The victim needs the agency of the law and the courts for redress,” she argues.