Men in India are still legally allowed to rape their wives. But women are fighting back.
In India, it’s now illegal for a man to have sex with his wife if she is under the age of 18.
The Indian Supreme Court issued the decision in mid-October, a move that essentially protects child brides from marital rape. While that is good news, advocates say, it’s just a small step toward de-incentivizing men from raping their adult wives. After all, rape of adult women in marriages isn’t yet against the law. So now anti-rape activists in India are looking at the next fight ahead of them: making any kind of rape in marriage illegal.
What kind of change can they expect?
“Men who rape their adult wives are still protected from criminal liability under the law,” says Divya Srinivasan, a licensed attorney in India and a legal fellow at the New York-based group Equality Now, an organization that pushes for gender equality. “Hopefully, the [recent] positive decision from the Supreme Court will encourage the Indian government to protect all women by removing the marital rape exemption in all cases.”
Marital rape for women over the age of 18 now awaits a decision in a separate case before the Delhi High Court. The plaintiffs in the case say that India’s rape laws are discriminatory because they do not include married women. The next hearing for the case is scheduled for today. If the law were to be changed in the plaintiffs’ favor, the Supreme Court would be the only court that could reverse the ruling.
Around 34 percent of crimes against women in India in 2015 were committed by their husbands or relatives, according to government data. Of course, that number includes only those crimes that were reported. The true number of marital rapes in the country is difficult to track. As noted by local media, even if a woman seeks medical help after being raped by her husband, the government will likely not document the offense due to the country’s current legal definition of rape.
As for children, it is illegal for a girl to get married before her 18th birthday. Still, nearly half of girls in India get married before then, says Save the Children India. The number of children entering marriage in the country is higher than anywhere else in the world, according to the NGO.
Statistics like these are familiar to Vikram Srivastava, who founded the New Delhi-based human rights advocacy organization Independent Thought and worked with a team to petition the Supreme Court for the ruling. “As the case moved on, the court kept asking for more data and information on the impacts of child marriage,” Srivastava said. “It was a very well-researched petition, and the arguments were very thorough.”
Independent Thought works to advance equality and justice through policy campaigns, education, and litigation. While advocating against the marital rape of women under the age of 18, the organization identified inconsistencies in India’s laws: A 2012 act declared that 18 was the age of consent. But a 2013 amendment to the Indian penal code stated that sexual intercourse between a man and his wife would not be considered rape if she was over the age of 15.
The laws contradicted each other. So Srivastava’s organization filed a petition to challenge the constitutional validity of the amendment in court. The case then inched toward the Supreme Court. Two months later, the Supreme Court overturned the 2013 clause.
According to Srivastava, his team stuck to a narrow focus in order to have a higher chance of succeeding in amending the law. “From our side, we just focused on the [contradictory clauses] so we have a larger chance of winning the case,” he said. His group didn’t include the issue of adult marital rape on purpose.
Despite the ruling, it is unclear how many child brides will now come forward to report marital rape. After all, for years it wasn’t a crime for men to have sex with their young wives.
Rape cases in India remain vastly underreported, especially in rural areas—as they do across the world. Women are less likely to report their abuse in India because they think it will not be taken seriously, says Equality Now's Srinivasan.
“There is a need to address the discriminatory and harmful family and community norms and stereotypes that lead to human rights violations of girls and women,” she said.
And there is still a lot of stigma against women who report attacks. For some, reporting a rape could mean she will compromise her or her family’s financial stability. Others say they are treated inconsiderately by police and law enforcement—laughed at, blamed, or even sexually assaulted again.
It remains unclear how effective the Supreme Court ruling will be, yet Srivastava is hopeful. “How it will be taken forward, how society will respond to the judgement is something we’re all watching now,” he said. “As time passes and cases come up, it will change public opinion about child marriage.”
For Equality Now, establishing a legal foundation is just the beginning.
“In order for good laws to have an impact on the ground, the government needs to have the political will to enforce the law and to promptly investigate and prosecute cases of child marriage and sexual abuse of children,” said Srinivasan.
Some organizations are working toward this very purpose. Save the Children India educates people in local communities and aims to create lasting change in the fight against child marriage. It does this by encouraging educational aspirations of girls and their parents, addressing gender discrimination, targeting poor and rural households, and engaging communities as well as young men and boys, said Prabhat Kumar, the organization’s national thematic manager of child protection.
And if that list seems expensive and complex, it’s because the issue itself is. “The whole issue of child marriage has various aspects involved,” said Srivastava. “And age of consent was [just] one of them.”
Yet another hearing has just been set for January 2. For now, the women of India wait for change.
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