The Indian government has stated that criminalizing marital rape would be “excessively harsh,” a stance that has come as a disappointment to campaigners advocating for changes ahead of a Supreme Court decision that could have long-lasting implications for the country’s legal system and its treatment of women. Presently, in India, forcing sex upon a wife is not considered rape as long as she is over the age of 18, an exception carried over from a British colonial-era law.
While most Western nations have long abolished the idea that marital rape is permissible, with the UK outlawing it in 1991, and it being illegal in all 50 US states, about 40 countries worldwide still have no legislation to address the issue. Even in countries where marital rape is recognized as a crime, the penalties for non-consensual sex within marriage are significantly lower compared to other cases of rape, according to a 2021 report by the United Nations Population Fund.
In India, campaigners have fought for years against this marital rape exemption, and the country’s Supreme Court is currently reviewing petitions calling for its removal. This comes after a split verdict from the Delhi High Court in 2022 on the issue. The Indian government’s Ministry of Home Affairs has officially opposed these petitions, arguing that while a man should face “penal consequences” for forcing sex on his wife, treating it as rape would have broader societal consequences, potentially undermining the marital relationship and the institution of marriage.
The government’s position, outlined in a written affidavit, expressed concerns that criminalizing marital rape “can be arguably considered to be excessively harsh and therefore, disproportionate.” This is the most explicit stance the government has taken so far on the matter.
Advocates pushing for the criminalization of marital rape were not surprised by the government’s position but expressed deep concern over the message it sends in a country where sexual violence against women is already widespread. Ntasha Bhardwaj, a scholar specializing in criminal justice and gender, commented on the matter, saying, “It speaks to India’s acceptance of sexual violence in our culture. We’ve normalized that sexual violence is a part of being a woman in our country.”
The issue of marital rape has gained renewed attention since the Indian government, led by Prime Minister Narendra Modi, updated the country’s 164-year-old penal code earlier this year. However, despite these updates, the marital rape exemption remains intact.
India has faced ongoing challenges in addressing violence against women, with several high-profile rape cases over the years sparking both national and international outrage. Just two months ago, the rape and murder of a young doctor in Kolkata led to mass protests across the country, with health workers demanding better protection. On Monday, the Central Bureau of Investigation charged a man with her rape and murder.
In its opposition to the criminalization of marital rape, the Indian government maintained that within marriage, a spouse has “a continuing expectation… to have reasonable sexual access” to the other. While this does not justify coercion or force, the government argued that the consequences of sexual violations within marriage are different from those outside of it. It further claimed that existing laws covering sexual and domestic violence already provide adequate protection for women.
Mariam Dhawale, General Secretary of the All India Democratic Women’s Association (AIDWA), which is one of the petitioners pushing for the criminalization of marital rape, disagreed with this reasoning. She pointed out that consent is a fundamental issue, regardless of whether the person is married. “Consent is consent,” she stated. “In our country, a woman is not thought of as an independent human being, as an independent citizen of the country. She is like an appendage to the husband. She’s subordinate, she’s not a separate identity as such.”
Dhawale emphasized that many of the women seeking help from her organization report sexual violence in their marriages, but most do not openly voice these allegations. “Because they know that nobody will believe them, and it’s not considered a crime,” she added. Changing the law to criminalize marital rape would be a crucial step toward addressing this, although Bhardwaj pointed out that legal reform alone is not enough. “It’s a cultural revolution underneath. Until and unless you make a big statement that this is not okay, the culture will never shift, because by not having that law, the culture is accepting of that violence,” she said.
Current Indian laws do provide women with some legal recourse if they are victims of sexual violence within their marriages. Women can seek restraining orders or file charges under existing laws like Section 354 of the Penal Code, which deals with sexual assault, or Section 498A, which addresses cruelty, particularly in cases related to dowry. There is also the Domestic Violence Act. However, advocates argue that these laws fall short and often leave women vulnerable to legal interpretation. A recent case in Madhya Pradesh highlighted this issue when a judge dismissed a woman’s complaint about her husband committing “unnatural sex,” citing the marital rape exemption as justification.
Women in abusive marriages, particularly those dependent on their husbands financially, face an even greater challenge, said Dhawale. “We don’t have any kind of safe places, shelter homes, institutions. So she has to remain in the four walls of that place. She cannot complain, because if she complains, she has no place to go… nobody will stand by her, unless and until it’s recognized as a crime.”
One woman, a survivor of marital rape, told CNN that criminalizing rape within marriage would empower women to stop their abuse. Another woman expressed her fears of leaving her husband because she would have no means to support her three children. “Outlawing marital rape is needed for women like me, who don’t have an avenue to leave,” she said.
India’s Supreme Court took a step in 2017 by raising the age of consent for marriage from 15 to 18 in a landmark decision. Jayna Kothari, a senior advocate who argued against child marital rape in that case, said the government made similar arguments back then, warning that changing the law would threaten the institution of marriage. However, the Supreme Court rejected those arguments. Recognizing marital rape now, Kothari added, would significantly enhance women’s equality in marriage.
Dhawale echoed these sentiments, stating that the real threat to marriage comes from the husband committing violence, not from women seeking justice. One concern raised by men’s rights groups and the government is that a law criminalizing marital rape could lead to false accusations. But Kothari countered that such fears are largely unfounded. “It’s still going to be very difficult,” she said, noting that women already face immense challenges in reporting domestic violence, even when laws are in their favor.