India government says criminalising marital rape ‘excessively harsh’

The Indian government has opposed petitions in the top court that seek criminalisation of marital rape, saying it would be “excessively harsh”.

The federal home ministry told the Supreme Court that “a man does not have a fundamental right” to force sex on his wife, but there were enough laws to protect married women against sexual violence.

The top court is hearing petitions seeking to amend a British-era law that says a man cannot be prosecuted for rape within marriage.

Violence within marriage is rampant in India – according to a recent government survey, one in 25 women have faced sexual violence from their husbands.

Marital rape is outlawed in more than 100 countries, including Britain which criminalised it in 1991.

But India remains among the three dozen countries – along with Pakistan, Afghanistan and Saudi Arabia – where the law remains on the statute books.

A number of petitions have been filed in recent years calling for striking down Section 375 of the Indian Penal Code, which has been in existence since 1860. The law mentions several “exemptions” – or situations in which sex is not rape – and one of them is “by a man with his own wife” if she is not a minor.

Campaigners say such an argument is untenable in modern times and that forced sex is rape, regardless of who commits it.

United Nations, Human Rights Watch and Amnesty International have also raised concerns about India’s refusal to criminalise marital rape.

But the Indian government, religious groups and men’s rights activists have opposed any plans to amend the law saying consent for sex is “implied” in marriage and that a wife cannot retract it later.

The courts have given contradictory judgements, sometimes allowing a husband to be tried for rape while at others dismissing the petition.

The case came to the Supreme Court after the Delhi high court in 2022 delivered a split verdict. The top court began hearings in August.

The state’s response in their 49-page affidavit submitted in the Supreme Court on Thursday has not come as a surprise in a country rooted in patriarchal traditions and where marriages are considered sacrosanct.

The report says that marriage is a relationship of a “different class” and has an “entire ecosystem” of laws, rights and obligations.

Criminalising marital rape “may seriously impact the conjugal relationship and may lead to serious disturbances in the institution of marriage”, it stated.

The affidavit noted that in a marriage, there was a “continuing expectation to have reasonable sexual access from one’s spouse” and while this did not entitle a husband to coerce his wife into having sex, including marital rape under anti-rape laws would be “excessively harsh” and “disproportionate”.

It added that there were existing laws that dealt with domestic violence, sexual harassment and assault that protected a married woman’s rights.

The home ministry also said that marriage was a social institution and the issue raised in the petitions was more social than legal and hence it should be left to the parliament to formulate policy.