India’s Debate on Marital Rape: Government Deems Criminalisation ‘Excessively Harsh’

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The Indian government has voiced its opposition to petitions calling for the criminalisation of marital rape, arguing that such a move would be "excessively harsh." These petitions, currently being heard by the Supreme Court, seek to amend an archaic British-era law that exempts a man from being prosecuted for raping his wife. 

 

 

In a submission to the top court, the federal home ministry made it clear that while "a man does not have a fundamental right" to force sex upon his wife, existing laws already provide sufficient protection for married women against sexual violence. The ministry’s statement, part of a 49-page affidavit, has reignited a heated debate over the status of marital rape in India, one of the few remaining countries where it is still not considered a crime.

 

 

Violence within marriage is a prevalent issue in India. A recent government survey revealed that one in 25 women have faced sexual violence from their husbands. Despite this, marital rape remains legal in India, which is part of a small group of countries—including Pakistan, Afghanistan, and Saudi Arabia—where the law still permits this. In contrast, more than 100 countries, including the United Kingdom, which criminalised it in 1991, have outlawed marital rape.

 

There have been several petitions in recent years challenging Section 375 of the Indian Penal Code, a law that has existed since 1860. This law outlines several exceptions to rape, including a provision that states that sex between a man and his wife is not considered rape, provided she is not a minor. Campaigners argue that this exemption is outdated and indefensible in modern society. They contend that non-consensual sex, regardless of the relationship between the parties involved, should be treated as rape.

 

Despite mounting pressure from international organisations like the United Nations, Human Rights Watch, and Amnesty International, India has remained resistant to criminalising marital rape. The opposition to such a move stems not only from the government but also from religious groups and men's rights activists. They argue that within marriage, consent for sex is "implied" and cannot be revoked later. 

 

The legal landscape has also been inconsistent on this issue. Courts have delivered conflicting judgments, with some allowing husbands to be prosecuted for raping their wives, while others have dismissed such petitions. The case now being heard by the Supreme Court follows a 2022 split verdict from the Delhi High Court.

 

The government’s affidavit suggests that marriage should be treated as a relationship of a "different class" with its own set of laws, rights, and obligations. It warns that criminalising marital rape could "seriously impact the conjugal relationship" and "lead to serious disturbances in the institution of marriage." According to the document, there is an ongoing "expectation to have reasonable sexual access from one's spouse" within marriage. While the affidavit acknowledges that this does not justify coercion, it argues that including marital rape under anti-rape laws would be disproportionate and unduly harsh. 

 

The ministry further pointed out that there are existing legal provisions to protect women from domestic violence, sexual harassment, and assault. It also stressed that marriage is a social institution, and the issues raised by the petitions are more social than legal. Consequently, the government believes the matter should be addressed by Parliament, which is responsible for framing laws, rather than by the courts.

 

This stance, while unsurprising in a country where patriarchal norms and traditions heavily influence the legal system, has sparked significant debate. Critics argue that it reflects an unwillingness to address the issue of consent within marriage and fails to recognise the autonomy and rights of women. For now, the fate of marital rape laws in India remains uncertain, as the Supreme Court continues to deliberate on the petitions.

 

Based on a report from BBC 2024-10-07