An Indian judge has dismissed a woman’s complaint that her husband committed “unnatural sex,” because under Indian law it’s not illegal for a husband to force his wife to engage in sexual acts.
The ruling, made in the Madhya Pradesh High Court last week, shines a light on a legal loophole in India that doesn’t criminalize marital rape by a husband against his wife, if she’s over age 18.
Campaigners have been trying to change the law for years, but they say they’re up against conservatives who argue that state interference could destroy the tradition of marriage in India.
A challenge to the law has been winding its way through the country’s courtrooms, with the Delhi High Court delivering a split verdict on the issue in 2022, prompting lawyers to file an appeal in the country’s Supreme Court that is still waiting to be heard.
According to the Madhya Pradesh High Court order, the woman told police her husband came to her house in 2019, soon after they were married, and committed “unnatural sex,” under Section 377 of India’s penal code.
The offense includes non-consensual “carnal intercourse against the order of nature with any man, woman or animal,” and was historically used to prosecute same sex couples who engaged in consensual sex, before the Supreme Court decriminalized homosexuality in 2018
According to court documents, the woman alleged the act happened “on multiple occasions,” and that her husband had threatened to divorce her if she told anyone about it. She finally came forward after telling her mother, who encouraged her to file a complaint in 2022, the court heard.
The husband challenged his wife’s complaint in court, with his lawyer claiming that any “unnatural sex” between the couple was not criminal as they are married.
Delivering his judgement, Justice Gurpal Singh Ahluwalia pointed to India’s marital rape exemption, which does not make it a crime for a man to force sex on his wife, a relic of British rule more than 70 years after independence.
“When rape includes insertion of penis in the mouth, urethra or anus of a woman and if that act is committed with his wife, not below the age of fifteen years, then consent of the wife becomes immaterial … Marital rape has not been recognized so far,” the judge said.
India’s Supreme Court increased marital consent from the age of 15 to 18 in a landmark judgement in 2017.
The woman also accused her in-laws of mental and physical harassment “on account of nonfulfillment of demand of dowry,” the court order said. A trial is pending.
Ahluwalia’s remarks have once again raised questions over India’s treatment of women, who continue to face the threat of violence and discrimination in the deeply patriarchal society.
The world’s largest democracy of 1.4 billion has made significant strides in enacting laws to better safeguard women, but lawyers and campaigners say its reluctance to criminalize marital rape leaves women without adequate protection.
Lawyer Indira Jaising, who is among several advocates fighting to outlaw rape within marriage, said “many women will benefit” if the exception is struck down.
She called for the courts to address the issue as a matter of urgency.
“The crime has been invisible. Today these women have nowhere to go,” she said. “Fast-tracking the case will send a message to everyone that violence against women matters.”
According to the 2019-2021 National Family Health Survey by the Government of India, 17.6% of more than 100,000 women ages 15-49 surveyed said they were unable to say no to their husband if they didn’t want sex, while 11% thought husbands were justified in hitting or beating his wife if she refused.
Women alleging rape in India have some avenues of potential legal action against their husbands.
For example, they can seek a restraining order under civil law or charges under Section 354 of India’s Penal Code, which covers sexual assault short of rape, and Section 498A, which covers domestic violence.
These laws are open to interpretation and judges can use them to impose prison sentences for sexual assault in cases where a married woman has alleged rape, but many don’t, lawyer Karuna Nundy previously told CNN.
Many married women are also ignored when they try to file a police complaint, a 2022 study showed.
The study examined records from three Mumbai public hospitals from 2008 to 2017 and found that of 1,664 rape survivors, no rape cases were filed by police. At least 18 of those women reported marital rape to the police, including 10 women who alleged rape by a former partner or husband.
Four women were explicitly told by police that they could not do anything as marital rape was not a crime, the report said.
CNN’s Esha Mitra contributed reporting.
