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In a recent decision at the Madhya Pradesh High Court, an Indian judge dismissed a woman’s allegation against her husband for engaging in “unnatural sex.” The ruling highlights a significant legal gap in India, where marital rape by a husband against his wife remains uncriminalized if she is over the age of 18. Advocates have long been pushing for legal reforms to address this issue, but they face opposition from conservative factions who fear that state intervention could jeopardize traditional marriage customs in India.
A legal challenge regarding this issue has been progressing through the court system across the country. In 2022, the Delhi High Court issued a divided opinion on the matter, leading lawyers to file an appeal in the Supreme Court of India. However, the appeal is still pending and awaiting a hearing.
In accordance with the Madhya Pradesh High Court’s ruling, the woman reported to the police that her husband visited her residence in 2019, shortly after their marriage, and engaged in what she termed as “unnatural sex,” as delineated under Section 377 of India’s penal code. This section pertains to non-consensual “carnal intercourse against the order of nature with any man, woman, or animal,” previously utilized to prosecute consensual same-sex relationships before the decriminalization of homosexuality by the Supreme Court in 2018.
Legal Battle Over Marital Rape Allegations
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The woman alleged that these incidents occurred “on multiple occasions” and asserted that her husband threatened her with divorce if she disclosed the occurrences. Subsequently, after confiding in her mother, she was encouraged to file a formal complaint in 2022. In response, the husband contested his wife’s accusation in court, with his legal counsel arguing that any such acts between them were not criminal given their marital status. In delivering his verdict, Justice Gurpal Singh Ahluwalia referred to India’s marital rape exemption, which does not criminalize a husband for forcing sex on his wife, a provision originating from British colonial governance more than seven decades ago.
The judge emphasized that, under current laws, marital rape remains unrecognized, asserting the immateriality of consent in certain instances involving wives over the age of 15. Notably, India’s Supreme Court, in a landmark judgment in 2017, raised the age of marital consent from 15 to 18. Additionally, the woman accused her in-laws of subjecting her to mental and physical harassment due to alleged dowry demands, as per the court order, with a trial pending in this regard. Ahluwalia’s comments have once again brought into focus the treatment of women in India, highlighting ongoing issues of violence and discrimination within its deeply patriarchal society.
India, the world’s largest democracy with a population of 1.4 billion, has taken significant strides in enacting legislation to better protect women. However, despite these efforts, the reluctance to criminalize marital rape has left women without adequate legal protection.
Campaign to Criminalize Marital Rape Gains Momentum in India
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Lawyer Indira Jaising, along with several advocates, is actively campaigning to outlaw rape within marriage, emphasizing the substantial benefits it would bring to many women. Urging the courts to address the issue urgently, she highlights the invisibility of this crime and the lack of recourse available to affected women. According to the 2019-2021 National Family Health Survey conducted by the Government of India, a concerning percentage of surveyed women aged 15-49 reported being unable to refuse sex with their husbands, while some believed that husbands were justified in resorting to violence if refused.
Although women in India alleging rape by their spouses have some legal avenues for recourse, such as seeking restraining orders or filing charges under specific sections of the Penal Code covering sexual assault and domestic violence, the effectiveness of these laws can vary due to interpretation by judges.
Despite the legal options available, many married women are still overlooked when attempting to file police complaints, as revealed by a 2022 study examining records from Mumbai public hospitals.
The study found instances where rape survivors, including those reporting marital rape, were denied action by the police, further highlighting the challenges women face in accessing justice and protection from marital rape in India.
