How A Men’s Rights NGO Got The Delhi High Court To Hear Arguments To Keep Marital Rape Legal

20 Mar 2023 18 min read  Share

In more than 150 countries, it is a crime to rape your wife but not in India, a position supported by the government of Prime Minister Narendra Modi. Driven by an unwavering conviction that women have been misusing laws to harass men, men’s rights activists in India battle to keep it that way, using legal arguments—the Supreme Court will hear them in March—political lobbying and an aggressive social media campaign.

(L-R) Amit Lakhani, a fashion designer turned men’s rights activist, filed a petition at Delhi High Court advocating for “husbands of India” and opposing criminalisation of marital rape. Swarup Sarkar's Illustration: Swarup Sarkar is the founder of Save Indian Family, the umbrella organisation under which men’s rights NGOs of India operate/ILLUSTRATIONS BY KAPIL JOSHI

New Delhi: On a Sunday in December 2022, a legal awareness seminar on “gender-biased laws” was about to begin at the dimly-lit hall of the Gandhi Peace Foundation in India’s capital. As the attendees trickled in, they were asked to fill out a form with their names — and the criminal charges pending against them. 

One man, who had flown in from Bangalore, confessed that he came to Delhi just for the seminar, as he was going through a divorce.

By noon, the hall had filled with approximately 150 men. Two women, seemingly accompanying their male relatives, stood out in the crowd. Halfway through the event, one of the speakers posed to the audience a direct question: how many men present had charges of domestic violence against them? 

Half the hands in the room shot up.   

The  Men Welfare Trust, an NGO based in Delhi, was organising the seminar. According to their website, they have been “diligently working on the issues such as victimisation of men”. The aim for this seminar was to arm men with the legal know-how that they would need in court to manipulate India’s legal system. 

The seminar brought together two cohorts: the attendees, men currently facing charges for crimes against women; and the speakers, men who had been accused of crimes against women in the past. 

Their shared belief was that women abuse laws and the legal system is rigged against men.

As the first speaker Wasif Ali,  an engineer by profession and one of the founders of the Men Welfare Trust, began speaking, the slide projected on the wall behind him declared, “Wake up! It is legal terrorism; no logic or common sense applies here. She can file cases and you have to start to fight back instead of surrender.”

The legal training offered to men—how to conduct oneself in court, how to handle the CAW (Crime Against Women) Cell of the police and even how to bribe police officers to get them on your side—revolved around a panoply of “pro-women” acts and laws. 

The laws discussed included sections 498A (dowry harassment), 375 (rape), 376 (rape) and 354 (outraging women’s modesty) of the Indian Penal Code (IPC) 1860, the Dowry Prohibition Act, 1961; the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013; and the Protection of Women from Domestic Violence Act, 2005. 

The Legal Battle Over Marital Rape

During his talk, Ali, a bald-headed middle-aged man, recounted the history of the men’s rights movement in India and outlined its three primary objectives: to establish a misandry-free society, a long-term goal; to nullify existing gender-based laws, a significant challenge due to “lack of political will”; and to obstruct new pro-women legislation, a comparatively easier target. 

In 2017, aiming at what Ali called an easier target, Men Welfare Trust filed an intervention petition in a case in Delhi High Court on the criminalisation of marital rape, an issue that has been subjected to political, legal and social debate in India for decades. 

More than 150 countries criminalise marital rape: India is not one of them. The IPC provides for an “exception” for forced sexual intercourse with a wife, provided she is over 18 years old. Such forced intercourse, according to the Exception 2 under section 375 of the IPC, is not rape.

In May 2022, the Delhi High Court handed down a split verdict on the issue.

Justice Rajiv Shakdher argued that the marital-rape exception must be removed. He said the fact that “the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading, or dehumanizing”. 

“Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally,” said Justice Shakdher. “Rape, as an offence, deserves societal disapprobation in the strongest terms, notwithstanding, the fact that the rapist is in a marital relationship with the victim.”

Justice C Hari Shankar argued that striking down this exception would create a new offence beyond the jurisdiction of the judiciary. Marriage between a husband and wife is not like any other relationship and the sexual aspect is “the bedrock [on which]  their marriage rests,” he said. 

Rape laws in India have evolved since their incorporation in 1860 into the IPC. Following the 2012 Delhi gang rape case and the public condemnation it sparked, The Criminal Law Amendment Act was enacted in 2013, which expanded the legal definition of rape to include coercive oral sex or insertion of any object into a woman’s private parts.

In 2017, Independent Thought, a non-profit organisation, filed a writ petition in the Supreme Court to increase the age of consent for a wife from 15 to 18. The two-judge bench increased the age of wife’s consent from 15 to 18, and thus, a man entering into a sexual relationship with his wife below 18 would be considered statutory rape. 

The battle to criminalise marital rape in India also gained ground after 2012 Delhi gang-rape. Experts have argued that marital rape is no different from any other rape, and since a marital relationship does not make a criminal act legal, there should be no exception for marital rape. Even domestic violence is a punishable crime.

But the interpretation of section 375 after the landmark Independent Thought judgment clearly mentions that sexual intercourse with one’s wife who is over the age of 18 is not rape, a position that the current government of Prime Minister Narendra Modi defends. 

Marital Rape A Family Issue: Modi Govt

In 2015, minister of state for home affairs, Haribhai Parathibhai Chaudhary told the upper house of Parliament that the government did not intend to recognise marital rape due to “level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindsets of the society to treat marriage as a sacrament.” 

More recently, in 2022, solicitor general Tushar Mehta, representing the union government in the marital rape case in Delhi High Court, argued that marital rape is part of “family issues,” and asked for more time for the centre’s response, stated that “there is no imminent threat that is something is going to happen to someone.”

Recent judgments on marital rape reveal judicial disagreement. Some courts have supported the traditional viewpoint that husbands cannot be denied sex. 

For instance, in August 2021, the Chhattisgarh High Court said any sexual act by a husband on a wife, even if it is forced, does not amount to rape. Yet, that same month, the Kerala High Court held that marital rape is a ground for divorce. 

The court said that even though the law does not recognise marital rape, “it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce”. 

In 2012 the Karnataka High Court denied the existence of marital rape. “The husband can't be made to suffer for no fault of his and be deprived of his natural urge to enjoy sexual happiness if the wife is unwilling to share the bed and discharge her duties,” said the court.

In March 2022, the same high court recognised marital rape as a crime, arguing that the exception under section 375 of IPC was not absolute. In December 2022, the Karnataka government filed an affidavit in the Supreme Court in favour of the March judgement.

Despite these varied rulings, marital rape in India remains legal until the Supreme Court delivers the final verdict. It is unclear when that verdict will come. 

A Fashion Designer Leads The Legal Battle

For Ali, the Delhi High Court split verdict on criminalising marital rape is a victory for men’s rights.

“It is easier to stall new laws than to repeal the existing ones,” he told his audience. 

The man behind this supposed victory was Amit Lakhani, the president of the Men Welfare Trust and a fashion designer by profession.

Lakhani went to court to represent “husbands of India” after preparing the intervention petition and briefly argued on his own, without the aid of lawyer, against the criminalisation of marital rape. 

“These (pro-women) laws were legislated way back in 1983, some even as recently as 2005,” said Lakhani, in an interview with Article 14, which lasted for two-and-a-half hours. “At that time, nobody opposed them. They were either PILs (public interest litigations) or legislations, which just went and became the law of the land. And then there was a lot of suffering.” 

 “This law (criminalisation of marital rape) is directly going to affect the family system in India, and we represent the husbands of this country,” said Lakhani.  

A self-styled “hardcore” men’s rights activist, Amit Lakhani joined the men’s rights movement in 2012, as his divorce case unfolded in Indore. 

One day while searching on the Internet for “life after divorce”, Lakhani stumbled upon the website of the Save Indian Family (SIF), an umbrella organisation under which most men’s rights NGOs in India operate. He called them and, soon after, attended one of their weekly support group meetings, held near Delhi’s India Gate.

Shortly after, Lakhani got involved with the SIF, and eventually, with men’s rights activists of a previous generation, Wasif Ali and Swarup Sarkar, and founded Men Welfare Trust, the NGO he currently heads. 

“We had SIF but we wanted to open another NGO in Delhi itself, because our target is to have as many NGOs as we can throughout India,” said Lakhani. 

Lakhani’s opposition to the criminalisation of marital rape in court—and otherwise—is primarily rooted in his belief, and that of his organisation’s, that women have been abusing laws and that criminalisation of marital rape would only serve to further exacerbate alleged misuse. 

“If somebody really wants to cash in from a failed marriage and wants to walk out taking a huge sum, this (marital rape law) will serve as a readymade platter,” Lakhani said.

No Data To Back Men’s Rights Claims 

Supriya Yadav, a lawyer who handles cases of sexual violence against women at For Women In India (FWII), an initiative by lawyers to help women seeking legal advice in matters such as rape, dowry death, divorce and domestic violence, pointed out that “there is no data available to suggest that women are misusing any of these laws”.

“[Men’s rights activists] show the rate of acquittal as the basis of their claim that women are misusing laws,” said Yadav. “But a person can be acquitted for a number of reasons.” 

“Women want to salvage their marriage and they don’t go around collecting evidence against their husbands,” said Yadav. “Shoddy work done by police is another reason. Sometimes lawyers, too, misguide their clients.”

But in the worldview of men’s rights activists, as was evident in the legal seminar at the Gandhi Peace Foundation, it is the case that women are misusing the laws. 

In seminars and meetings where new members are first exposed to the men's rights movement and its ideology, they are conditioned to believe that women are unscrupulous and no men should harbour a myth that  “my case is false, but other’s cases might be true”. 

Essentially, this means that every man facing a trial for crimes against women is innocent and a men’s rights activist must take a man’s claims of innocence at face value.

Lakhani also linked the rising cases of suicide among men as the evidence of the need to avoid outlawing marital rape. 

In the intervention petition that they filed, the Men WelfareTrust argued that “many men and their family members had committed suicide because of the stigma attached right at the moment a person is falsely accused of dowry harassment, rape or any such crime, so any law capable of such high misuse…should not come into existence”.  

In the memorandum the Men Welfare Trust sent out to members of Parliament (MPs), urging them to scrap the dowry harassment law, they argued that more men began to die by suicide since 1983, when women-welfare laws began to emerge. There is no data to support the alleged relationship between rising suicides and emergence of women welfare laws. 

“We wish to bring to your notice that IPC 498A, is one of the most abused laws of India,” read the memorandum, “...and has finally resulted into making marriage a big, life-threatening gamble for Indian men.”

Lakhani also pointed out that not as many women die by suicide as men, and the biggest reason for male suicides is “family issues”. 

Prachi Nirvan, defense attorney who practices at the Delhi High Court said that she had seen misuse of women welfare laws, but it cannot be the sole reason to not criminalise marital rape.

 “Whenever a law is made, it is always prone to misuse. I have been handling these cases myself,  where the sole motive is to abuse the husband or his family members. But we have to take it case-wise,” Nirvan said. 

“Now the problem is how do you counter (misuse)? You counter it by bringing stringent counter laws to punish people who’ve been misusing laws,” Nirvan added. Section 211 of IPC lays down provision against filing false charges. 

“But the fact that some people will misuse the law should not be the sole reason why you should not bring marital rape law. Because I have had clients who have been a victim of marital rape. How do I secure justice for them? One has to tell me,” Nirvan said. 

Selective Use Of Data

While it is true that India’s suicide rate has risen—and reported the highest-ever number in 2021—experts said the increase in male suicides may have been due to better reporting than an actual increase in the numbers, which is not the case of female suicides, as they are often hidden due to stigma. 

There is also ample evidence to show that India has a widespread and under-reported marital-rape problem. The average Indian woman is 17 times more likely to face sexual violence from her spouse than an outsider: nearly a third of women aged 18-49 reported violent husbands, according to the National Family Health Survey 2019-21, the latest available data. 

The possibility of abuse or sexual violence is also a major reason why female suicides, too, are underreported, according to a 2020 study by Translational Health Research Institute, a think tank under the Western Sydney University that produces research on health and wellbeing. 

Often, the family provides sketchy explanations, such as overdose of medicine or inadvertent consumption of poison. Such cases are not recorded as suicides because it lacks the “desire to die”, a criterion under which the National Crime Records Bureau (NCRB) records deaths by suicide

Men’s rights activists do not accept this reasoning. 

While filing the intervention petition, Lakhani sought a lawyer who would unapologetically argue in court that if marital rape were to be criminalised, a new law would be heavily misused and would increase male suicides. 

At the time, Lakhani could not find a lawyer willing to make that argument.  

“We thought that we should reach out to a big lawyer and file an intervention,” said Lakhani. “But we didn’t find anybody with the same wavelength, who could go unapologetic about what we think about the whole thing and just call spade a spade.” 

“That’s when we decided we will go (to court) party in person,” said Lakhani. “We’ve been doing agitations, we’ve been reaching out to the legislature, sending memorandums. Now it was time to get into judicial activism.” 

The Search For A Lawyer Ends

Things, however, took a turn in March 2022. Lakhani, alongside his fellow men’s rights activist Ritwik Bisaria, was defending his case in court himself until engineer-turned-lawyer J Sai Deepak came into picture. 

Deepak was appearing for activist Madhu Kishwar, who had filed yet another intervention petition in the ongoing case. As The Leaflet reported in January 2022, he sought permission to argue for 10 minutes, which the court declined.

Deepak’s petition was not allowed, but lawyerless, self-litigant Lakhani, who was  watching him argue virtually, was, in his words, “impressed”. 

“I was watching that and I saw that Mr Sai Deepak had pressed so much that he wanted to be here, and he was very passionate,” said Lakhani. “And we thought that if the situation demands that we should have a lawyer now, since the honourable court was also in a way indicating so, then it should be somebody like Mr J Sai Deepak."

“In J Sai Deepak’s words only, it was a demand and supply situation where we wanted to have a lawyer and he wanted to be in the case,” said Lakhani. “We decided the following day that he was representing us.”  

After Deepak’s entry, the focus of the argument moved away from alleged misuse of “pro-women” laws to separation of powers (SOP). 

“Creation of law, especially an offence, is strictly in the realm of the legislature. The judiciary cannot arrogate to itself this power since not only would it violate SOP, it would also defeat one of the purposes underlying SOP, namely to protect the right of people to participate in law and policy making,” Deepak wrote in an emailed response to Article 14.

Deepak also said that “the entity I represent is *not*, in principle, against recognition of marital rape”.

Amit Lakhani might disagree with that view. 

First Echoes In Parliament

“If the exception is removed, and the marital rape (law) comes in, in the avatar that it is being discussed right now…I believe it will be very dangerous, because, in fact, even now, quite a lot of aware youngsters have been coming forward and started saying it is better to not get married in India only,” Lakhani said.

Lakahni said he believed the recognition of marital rape would be “a recipe for disaster”, even if many might not agree with him now. They might, he said, “10 years from now.””

“When somebody will look back, they'll understand why we fought this,” said Lakhani. “I will be able to at least tell myself that there was a time when it was being discussed and we were fighting for it. Whatever happens, happens but we really fought when we saw this could actually bring in injustice.” 

Some MPs have started echoing what men’s rights groups believe. 

In August 2022, Rajiv Pratap Rudy, a former minister, Bharatiya Janata Party (BJP) MP representing Saran, Bihar, said in Parliament that “if women have 90% rights in India, men should have at least 10%”. 

Harinarayan Rajbhar, a BJP MP from Ghosi, Uttar Pradesh, in an interview with ANI in September 2018 said, “on the lines of National Commission for Women, a commission for men should be made, men should also get a platform.”

Social Media Battles

A December 2022 paper from Joyojeet Pal, associate professor of information at the University of Michigan and researcher Sheyril Agarwal, analysed Twitter activity of men’s rights activists and found “the action [on Twitter] around marital rape case begin before the actual court deliberations, suggesting that the goal is to influence public opinion around it prior to the judgement”.

In October 2022, when D Y Chandrachud, notable for his involvement in several judgements promoting gender justice, such as those that found women’s exclusion from Sabarimala to be a violation of their rights and that deemed the adultery law unconstitutional, became Chief Justice of India, the researchers noticed the online community of men’s rights activists making an organised attempt at viral tweeting to undermine his credibility using hashtags #NotMyCJI and #LegalTerrorism. 

Most of this outrage had erupted because Chandrachud at the 9th Convocation of National Law University, Delhi in October 2022, told students of the National Law University (NLU) to “incorporate feminist thinking” in the way they practise law. 

“What we found is that MRAs very quickly come into action as a group rather than an individual,” said Pal, in an interview with Article 14. “The one impact it will have is that whenever a women related issue will be discussed on social media, MRAs will quickly turn the discourse.”  

Before Lakhani took the lead, Swarup Sarkar, a former engineer, was the face of the men's rights movement in India. “The pain of men is not documented,” said Sarkar, in an interview with Article 14, which lasted for an hour and half. 

Sarkar grew up in West Bengal’s Bangaon. Soon after his short-lived marriage, he formed a Yahoo group called Save Indian Family, which later morphed into an umbrella organisation that nurtures India’s men’s rights movement.

On Christmas eve 2022, Sarkar was at a public park in Delhi’s Mandi House, where a weekly meeting of the Save Indian Family was being held. Once the supposed legal training was over, men were asked to make a circle and install Twitter on their mobile phones. 

Clad in a black turtleneck and blue blazer, Sarkar was standing in the middle of the circle, shouting as loudly as he could. 

“No media is going to hear your suffering,” shouted Sarkar. “But Twitter is your media. Follow Men Welfare Trust and join us in the fight that we are fighting against gender-biased laws.” 

Despite the fact that they are fringe groups, with a whisper of political support, India’s men’s rights activists are complicating India’s ongoing battle for gender equality. 

When the Supreme Court will take up the matter of marital rape case, listed for 21 March 2023, Men Welfare Trust will try its best to keep it legal.    

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(Anup Semwal is an independent journalist who writes on science, technology and social justice. Ishita Roy is an independent journalist who writes on gender, law and heritage. Both  of them are currently pursuing Masters in Convergent Journalism from AJK Mass Communication Research Centre, Jamia Millia Islamia.)