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The recent ruling by the Madhya Pradesh High Courts has brought attention to a legal gap in India’s legislation that does not classify marital rape by a husband against his wife, if she is over 18, as a criminal offence.
Advocates have long been pushing for the revision of this law, but they are met with resistance from conservationists who fear that government interference could disrupt the sanctity of marriage in the nation.
A legal battle over this law has made its way to the Delhi High Court, resulting in a split decision in 2022. This prompted lawyers to appeal the case to the Supreme Court, where it is currently awaiting a hearing.
Non-consensual sex between marital couples is not a crime
As per court documents, the woman accused her husband of sexually assaulting her in 2019 through “unnatural sex,” which falls under Section 377 of the Indian penal code. This section prohibits non-consensual “carnal intercourse against the order of nature with any man, woman or animal.”
The woman claimed that the “unnatural sex” took place “repeatedly,” with her husband threatening divorce if she spoke out. She decided to come forward after confiding in her mother, who urged her to file a complaint in 2022.
The allegations made by the wife were contested by the husband’s legal team, who argued that any sexual activity deemed “unnatural” between them should not be considered as a crime due to their marital status.
During the trial, Judge Grupal Singh Ahluwalia referred to the exemption in Indian law that does not classify forced sexual acts on wives, especially those over the age of 15, as criminal offenses. The judge further clarified that marital rape has not been officially recognised thus far.
In 2017, the Supreme Court of India raised the minimum age of marital consent from 15 to 18.
Additionally, the woman accused her in-laws of subjecting her to harassment related to dowry demands, and a trial is currently underway to address these allegations.
Judge Ahluwalia’s statements have reignited the ongoing discussion surrounding the treatment of women in India, where they often face violence and discrimination within a predominantly patriarchal society.
India, with its population of 1.4 billion people, has made significant strides in implementing laws to protect women. However, the absence of criminalizing marital rape leaves women vulnerable and without adequate legal protection.
Indian laws which can prevent marital rape
In India, women who experience rape by their husband have legal options available to them. They can seek a restraining order through civil law, press charges against their spouse under section 354 of the Penal Code, which addresses sexual assault, or utilize Section 498A for cases of domestic violence.
Section 377 of the Indian penal code. This section prohibits non-consensual “carnal intercourse against the order of nature with any man, woman or animal.”
Initially used to prosecute same-sex couples engaged in consensual relationships, Section 377 was partially struck down in 2018 following the Supreme Court’s decriminalization of homosexuality.
However, the interpretation of these laws can vary, and many judges are hesitant to impose prison sentences for sexual assault, especially when the victim is a married woman accusing her husand.
What data tells about marital rapes?
According to the 2019-2021 National Family Health Survey conducted by the Indian government, more than 100,000 women between the ages of 15 and 49 were surveyed. The survey revealed that 17.6% of these women felt unable to refuse sex when they did not want it, while 11% believed that husbands were justified in assaulting their wives if they refused.
Furthermore, a survey conducted in 2022 revealed that numerous married women faced neglect when attempting to file a police complaint. A study of 1,664 rape survivors from Mumbai hospitals between 2008 and 2017 found that not a single rape case was registered, despite 18 of the women reporting marital rape. Shockingly, four of these women were explicitly told that their complaint held no significance as marital rape was not considered a crime.
