“He was like a beast, and when I refused his advances, he slapped me and then forced me to have sex with him. I cried out throughout the night,” recalls 32-year-old Shwetha.

“The ordeal did not end there. It continued every night. I have lost interest in sex,” says Shwetha with tears in her eyes as she recounts her nightmare.

The housewife has been a victim of rape and the rapist is none other than her husband, a software engineer in a prestigious firm. But can the law prosecute him?

In India, it is a notion that once married, a woman does not have the right to refuse her husband the joy of sex. This allows husbands the unquestioned right to have sex with their wives when they want.

Take the case of 65-year-old Sunanda Dasgupta. “I have a 39-year-old son, a software engineer. Even now, I have to sleep with my husband at least four to five times every month. Since my sister visits our place almost every afternoon, we could not have sex. As a result, he forces me to have sex with him at night. Since I’m past 65, intercourse sometimes gives me acute pain. But I have to bear it silently,” says Sunanda. There are millions like Shweta and Sunanda. With no legal recourse, they suffer in silence.

“No one ever thinks of rape in the context of marriage,” says lawyer C Vishnu Priya.

“Women themselves find it difficult to believe that a husband can rape his wife. After all, how can a man be accused of rape if he is asserting his conjugal rights?” asks Vishnu Priya, who heads Shakti, a women’s organisation in Tuticorin.

According to the Supreme Court, rape is a crime against basic human rights. According to section 375 of the Indian Penal Code (IPC), sexual intercourse by a man with his wife, not being under-15, is not rape. Rape is defined in the IPC, but marital rape is not. A separate law has to be enacted on marital rape and it should be punished under the IPC.

Vishnu Priya says: “In most of the divorce cases I have come across, men demand divorce on the grounds that women deny them sex. But is it enough to claim for a divorce? Women should also know their rights and legal institutions should help marital rape victims fight for their rights.”

Although India is trying hard to ratify the Act that makes domestic violence punishable by law, there is hope that with the Protection of Women from Domestic Violence Act 2005, a woman can appeal against marital rape in the criminal courts. “She can also file a case asking for separation,” says Prasanta Das Sharma, a veteran lawyer who deals with marital rape. He says the latest country to see the light is Thailand.

“When a stranger rapes a woman, she has to live with a bitter memory. When her husband rapes her, she has to live with the perpetrator. Marital rape is extremely destructive because it betrays the fundamental basis of a marital relationship,” he says.

The Thai national assembly recently passed the nation’s first marital rape bill. Offenders now face up to 20 years in jail and a fine of 40,000 baht (about Rs 45,000) — the same penalty that exists for non-marital rape. The remarkable part of the Thai law is that marital rape by either spouse is recognised.

Das Sharma says Mexico’s Congress ratified a bill that makes domestic violence punishable by law. If convicted, marital rapists could be imprisoned for 16 years.

Referring to rape laws in other countries, Das Sharma says there is no such thing as marital rape in Pakistan. There was uproar in Pakistan last year when a section of the press reported the misery of two women.

One was forced to have sex with her husband who was also sexually abusing their daughter. He gave her a choice; either consent to have sex or allow her daughter to be raped. The second incident was more horrific. The wife was gang-raped by her husband and three of his friends, who locked themselves in a room with her, raped her, and mutilated her private parts with a knife.

When social activists took up the case with the police, they dismissed it as a case of gharailoo musla (domestic matter).

Even in Nepal, the Supreme Court has declared that husbands who force their wives to have sex can now be charged with rape. The ruling, which came into force last year, was the result of a petition filed in 2001 by the Forum for Women, Law and Development.

Taking a dig at the present judicial system, advocate Ajeetha Bakthavatchalam points out that there is no law that recognises marital rape as a cognizable offence in India, though the PWDV Act, 2005, talks about sexual abuse. “It’s basically a civil law.”

She is, however, optimistic that if a law is implemented, “the women who find it difficult to talk about the physical violence that takes place under the guise of conjugal relations in the marriage will raise their voices against this most heinous crime.”

Das Sharma agrees with Priya on the need for a separate law to try marital rape cases. But he says a mere amendment in the law will not ensure women get their due. The police and the judiciary must be sensitised to deal with such cases.

“I feel we need to wait for the next Parliament session to lobby for a bill on marital rape. And what we need is a more participatory process where groups working on the issue from all over the country are given a chance to make their submissions. And I hope the government will take all this effort seriously and will come up with a clear cut verdict on outraging the modesty of a woman,” he says.

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