She was holding a seven-month-old baby boy in her hand. He had allergy on his face but his smile will remain in my heart forever. I was shooting for my film at one of the women cells in Gurgaon where I met her. I asked her what happened. "Ma'am I have been coming here since last eight months, but they have done nothing for me. My husband doesn't want to take care of my two kids and me. He used to beat me up every day. One day he smashed my head on the wall. I was bleeding. I ran away and came back to my mother's place. We are very poor. I don't have money to feed my kids or myself. I am at the mercy of my parents," she said, tears rolling down her eyes. Have you filed any case? I asked her. "Yes. Police took my FIR. He was arrested and put behind bars. But then he got bail after some time and has stopped communicating after that. There's a case for maintenance in the court too, but nothing is happening," she said.

Shweta (name changed) is a young mother, uneducated and unemployed. She is from a family of pot makers who earn a bare minimum and stay in Jhuggis (make shift home). She has three younger sisters who are yet to get married. Shweta’s parents did whatever the police advised them to do. While I spoke to her, I realised that the women officials at the women cell were least interested in hearing her plight. I asked her to go to the National Commission for Women, and she asked me "What is that?"

Shweta isn't alone. Many women like her have all the laws made for them, many institutions running for them, but get little relief either by the state or the laws. While these women get quoted as a number under various research studies, they don't get the benefit of the laws made for them.

Aditya (name changed) has been doing the rounds of the police station for the last six months. He and his wife had a love marriage, and everything was beautiful until his wife's parents started overly interfering in their life. He felt like a puppet, being manipulated, emotionally blackmailed and abused too for not being the way they wanted him to be. He tolerated all of it for a long time - his own relationship with his parents suffered, he became depressed, felt suicidal, couldn't concentrate on his job and felt helpless. He finally decided that he wouldn't take it anymore and sought separation. His wife and her family gifted him with Dowry, Domestic Violence, Unnatural Sex, Criminal Breach of trust and many more cases immediately thereafter. In a marriage where he went all out to keep his wife happy, he was accused of committing crimes that he couldn't even think of, let alone doing. He has been presented with two options - pay a hefty amount and settle the cases or face the music for as long as he doesn't pay. No one wants to hear his side of the story, and he has been labelled a criminal though he was the one abused in the marriage.

Shweta and Aditya are two sides of the same coin when it comes to laws made for married women to protect them from marital abuse in India. While women like Shweta run helter-skelter for relief, men like Aditya run to prove their innocence. Both are sufferers, and if we want to bring any new law under these circumstances, it would be highly unfair if we look only at Shweta and not Aditya. Even if we look only at Shweta we need to introspect ground realities for Shweta rather than just saying "we need a law" because, if criminal prosecution of the husband were the only answer, Shweta would have got a response a long time ago!

That some women are coerced into sex against their will and consent inside of marriage in India and also subjected to violence for it is an undeniable fact. When a very high percentage of marriages in India are arranged, we are of course talking about sexual intimacy between two people who hardly know each other. We are also talking about two people who have been brought together by society to fulfil each other's desires, necessities and needs. Sex is a basic human need for both men and women and to deny that without reasonable grounds has been made a ground for divorce under Indian Laws governing marriage.

Sexual Violence or any kind of violence on a woman in a domestic relationship has been made an offence under the Domestic Violence Act. Cruelty of any nature, whether mental or physical that can cause danger to life, limb or health of a married woman is a crime under section 498A of the Indian Penal Code (IPC), punishable with rigorous imprisonment for three years and also a fine. Not only the husband but his entire family can also be made an accused in these cases. A woman separated from her husband can prosecute him for rape if he forces himself upon her under existing rape laws. So it is wrong to say that women in India have no protection from sexual abuse within marriage, as claimed by those who are spearheading a campaign for bringing a law for marital rape in India.

While passing a law for marital rape would mean nothing more than removing an exception from existing rape laws, that do not allow a husband to be prosecuted for the offence if the wife is above 18 years of age (Supreme Court of India has recently criminalised sex with wife below 18 years of age), its implementation on ground is a complicated reality only feminists can ignore. I say that because of the nature of the cases coming to our courts today where the wife cites any action done or not done by the husband as cruelty with the husband having to face criminal charges for years along with his family. Most of these cases are filed on the basis of the testimony of the wife and her parents alone, without any evidence substantiating the physical or mental abuse alleged, whatsoever. There is very little reprieve available if the husband is falsely accused. It is easy to say that the misuse of law is no ground to not have a law but bringing a law that will have no checks and balances against its misuse will be disastrous. Under amended rape laws, a woman needs no evidence to initiate a case against a man. Her testimony is evidence in itself, and it solely can lead to conviction. It is the man who has to prove that sex happened with consent. Barring cases where there is extreme violence along with sexual assault, if the law is passed, how would courts decide if there was consent between husband and wife or not - her words vs his words?

Take this into account – as per the National Crime Records Bureau, of the 33,000 rape cases reported in 2015, over 7700 were rape cases filed on husbands or live-in partners. Recently there have been cases where women have filed “rape on false promise of marriage” cases on men after 15 or 20 or even 32 years. In such cases, consent becomes a factor of an alleged promise whether made or not. Whatever be the truth of the matter, the man is arrested immediately under rape charges and languishes in jail for months or years without bail. Within few years of rape laws getting amended through the criminal law amendment bill in 2013, petitions have been filed in various courts against the misuse of rape laws. Madhu Kishwar, a renowned social activist has filed a public interest litigation in the Delhi High Court regarding the same, questioning the constitutional validity of the amendments which have made the law draconian and easy to abuse.

A twenty-year-old girl has petitioned the Mumbai High Court, asking for guidelines to ensure that people are not booked under false charges of rape after a love affair turns sour. Even the police in many states have acknowledged the presence of professional gangs who are using rape laws to extort money after threatening and intimidating people with false rape cases.

Even before marital rape is recognised, instances of the misuse of rape laws in matrimonial disputes are coming to the fore. In June 2016, Deputy Inspector General of Police of Meerut Laxmi Singh, issued a circular to the police, cautioning them before adding IPC 376 (rape) or IPC 377 (Unnatural Sex) to cases registered under 498A because such cases were increasing day by day after guidelines were issued by the Supreme Court prohibiting mechanical arrests under 498A.

Inspector General Ashutosh Pandey

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