NEW DELHI: Raped by her husband on her wedding night aged 17, Divya described her repeated suffering—an all-too-common account in India, permitted by a terrifying colonial-era legal loophole. “I told him I have never had sex, and asked him if we can understand it,” 19-year-old Divya said.

“He said: ‘No, the first night is very important for us men’.” He then slapped her hard, ripped her clothes off and forced himself on her.

What followed her arranged wedding in 2022 was 19 months of sexual and physical abuse. “If I was hurt, it was invisible to him,” said Divya, whose name has been changed to protect her identity.

Six percent of married women aged 18-49 report spousal sexual violence, according to the government’s latest National Family Health Survey. In the world’s most populous country that implies more than 10 million women have been sexual victims of their husbands. Nearly 18 percent of married women feel they cannot say no if their husbands want sex, according to the health survey.

And 11 percent of women thought a husband was justified in beating his wife if she refused, it found.

‘Victorian mentality’

Under India’s inherited British-era penal code, an exception clause stated that “sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. India introduced a new penal code on Monday but the exception clause remains—although it does raise the minimum age that a man can rape his wife to 18.

Lawyer Karuna Nundy is challenging that. Nundy, who has a case for the All India Democratic Women’s Association (AIDWA) rights group at the Supreme Court, condemned the clause as “colonialism from a Victorian mentality”. She holds a “fervent hope” for change, mentioning some of the more than 50 nations who have outlawed it. Chief Justice D Y Chandrachud called it an “important issue” this year.

But the decade-long case has made painfully slow progress. In May 2022, a two-judge bench in the Delhi High Court issued a split verdict. One judge, C Hari Shankar, said that while “one may disapprove” of a husband forcibly having sex with his wife, that “cannot be equated with the act of ravishing by a stranger”.

The other judge, Rajiv Shakdher, disagreed. Shakdher said it “would be tragic if a married woman’s call for justice is not heard even after 162 years”, referring to the British-era statute.

Monika Tiwary from Shakti Shalini, a rights group which supports sexual violence survivors, said marriage should not shield a crime. “How can marriage change the definition of rape?” she said.

“Getting married does not take away the rights over your body.”

Arranged marriages

“Most of the survivors do not really have this understanding that it is not okay, and it is marital rape,” Tiwary added. “The moment we label it and attach a law to it, people start recognizing it, awareness increases”, Tiway added. Divya’s marriage was arranged, like many in India.

But her family did not pay the usual hefty cash dowry to the husband—something he used against her.

“He would taunt me by saying ‘It’s not like your parents gave any dowry, I can at least do this’,” Divya said. “At times he would put a knife on my throat and dare me to say no. (He would say) ‘You are my wife, I have full rights on you’.”

Swati Sharma, a 24-year-old mother of two, said she married a man for love. The first time her husband assaulted her was after their first daughter was born. “I used to think: ‘Okay, we are married, so we can do this’,” she said.

When he was angry, he would take it out on her. If she refused sex, he accused her of having an affair. The tipping point came when he stripped her naked in front of their children, waiting until they slept.

“Then he proceeded to have sex with me,” she said. “He didn’t leave me till he had his way.”

She packed her bags, took her children and left. But despite the abuse, some women return to violent husbands fearing for their children, and under intense social pressure.

Sharma also returned to her husband, after he went to counseling and persuaded her to come back.

While Divya escaped, she still lives in fear. Her husband messaged her mother threatening that he “will not let her live”. But she says she is “proud” that she left. “There are many girls who still endure this, happening to them day and night,” she said. “Such men should be punished.” – AFP