India government has urged the Supreme Court not to impose harsher criminal penalties for marital rape in an ongoing case where campaigners are advocating for its criminalization.
The current Indian penal code, which dates back to the 19th century under British colonial rule, explicitly excludes marital rape from its definition, stating that “sexual acts by a man with his own wife… is not rape.”
In July, Prime Minister Narendra Modi’s government introduced an updated penal code that retained this controversial exemption, despite a decade-long legal challenge by activists pushing to outlaw marital rape.
On Thursday, the Ministry of Home Affairs submitted an affidavit to the Supreme Court, acknowledging that while marital rape should lead to “penal consequences,” it argued that such offenses within marriage should be dealt with more leniently than rape committed outside of marriage.
The affidavit, as reported by ‘The Indian Express, emphasized that “a husband certainly does not have any fundamental right to violate the consent of his wife.”
However, it suggested that applying India’s standard rape laws to marriages could be “excessively harsh,” reflecting the government’s stance that a distinction should be maintained between sexual violence within and outside marriage.
Currently, Indian law mandates a minimum sentence of ten years for rape convictions. The government insists that existing laws, such as the 2005 Protection of Women from Domestic Violence Act, already provide sufficient recourse for victims of marital rape.
This law acknowledges sexual abuse as a form of domestic violence but does not impose criminal penalties on offenders. Additionally, another section of the penal code punishes “cruelty” by husbands toward their wives, which can lead to prison terms of up to three years.
The issue of marital rape is pervasive in India. Data from the National Family Health Survey (2019-2021) reveals that 6% of married women aged 18-49 reported experiencing sexual violence from their husbands. Given India’s vast population, this suggests that over 10 million women have suffered spousal sexual violence.
The same survey found that nearly 18% of married women felt they could not refuse their husbands’ sexual demands.
Despite such alarming statistics, divorce remains largely stigmatized in India, where only 1% of marriages end in separation, often due to intense societal and familial pressure to preserve marriages, even if they are abusive.
Additionally, the slow-moving nature of India’s criminal justice system compounds the issue, with many cases taking years, if not decades, to be resolved.
The legal battle for the criminalization of marital rape has also been protracted, having moved to the Supreme Court after a split verdict by the Delhi High Court in May 2022.
In that ruling, one judge acknowledged that forced sex within marriage is unacceptable but argued it should not be equated with “ravishing by a stranger.”
