A female Indian accuses her spouse of compelling her for atypical intercourse. The judge deems it lawful in the institution of wedlock.
The recent decision by the Madhya Pradesh High Court sheds light on a legal loophole in India's law that doesn't consider marital rape by a husband towards his wife, if she's over 18, a crime.
For years, activists have been advocating for a change in this law, but they face opposition from conservatives who believe that government intervention could potentially disrupt the tradition of marriage in the country.
An ongoing challenge to the law had reached the Delhi High Court, leading to a split verdict in 2022, leading to lawyers appealing the case to the Supreme Court, which is still awaiting a hearing.
According to the court records, the woman claimed her husband abused her in 2019 by performing "unnatural sex" with her, which comes under Section 377 of the Indian penal code. This section criminalizes non-consensual "carnal intercourse against the order of nature with any man, woman, or animal."
Initially used to prosecute same-sex couples in consensual relationships, Section 377 was partially lifted in 2018 after the Supreme Court decriminalized homosexuality.
The woman alleged that the "unnatural sex" occurred "on multiple occasions," with her husband threatening divorce if she divulged the incident. She decided to come forward when she shared her ordeal with her mother, who encouraged her to lodge a complaint in 2022.
The husband's lawyers challenged his wife’s accusations, arguing that any “unnatural sex” between them was not criminal as they are married.
During the trial, Judge Gurpal Singh Ahluwalia referred to India’s marital rape exemption, which did not classify forced sex on wives, particularly when they were over 15, as a crime. The judge further explained, "Marital rape has not been recognized so far."
In 2017, the Supreme Court altered the marital consent age from 15 to 18.
The woman also accused her in-laws of harassment related to dowry demands, with a trial underway.
Judge Ahluwalia’s remarks have rekindled the debate on India's treatment of women, who face violence and discrimination in a predominantly patriarchal society.
With 1.4 billion people, India has made considerable progress in enforcing laws to safeguard women. However, the absence of criminalizing marital rape leaves women vulnerable without adequate protection.
The 2019-20201 National Family Health Survey by the Indian government found that 17.6% of more than 100,000 women aged between 15 and 49 surveyed felt unable to decline sex when they didn't want it, while 11% felt that husbands were justified in assaulting their wives if they refused.
Women in India, who allege rape by their husbands, have certain legal remedies. For instance, they can file a restraining order under civil law, charge their spouse under Section 354 of the Penal Code, which addresses sexual assault, or use Section 498A for domestic violence.
Although these laws can be interpreted in various ways, many judges refrain from imposing prison sentences for sexual assault, particularly if the married woman has accused her husband.
Additionally, a survey from 2022 indicated that many married women were neglected when they tried to file a police complaint, with a study of 1,664 rape survivors from Mumbai hospitals from 2008 to 2017 finding that not a single rape case was filed, even though 18 of the women reported marital rape. Furthermore, 4 of the women were explicitly warned that their complaint was meaningless since marital rape was not a crime.
CNN’s Esha Mitra contributed to this report.
Read also:
- This will change in December
- Dikes withstand water masses so far - Scholz holds out the prospect of help
- Fireworks and parties ring in 2024 - turn of the year overshadowed by conflicts
- Attacks on ships in the Red Sea: shipping companies avoid important trade route
The Madhya Pradesh High Court's decision highlights the need for reevaluating India's marital rape laws, as they currently do not criminalize such acts when the wife is over 18. Despite advocacy efforts, conservatives in India remain opposed to altering traditional marriage norms.
In response to the woman's allegations of forced 'unnatural sex' against her husband, lawyers argued that marital rape could not be considered a crime due to the marital rape exemption in Indian law.
Source: edition.cnn.com
