India’s government has urged the Supreme Court not to impose stricter criminal penalties for marital rape as part of an ongoing case led by activists seeking to criminalize the practice.
Under India’s current legal framework, established during British colonial rule, marital rape is not recognized as a crime.
The Indian penal code explicitly states that “sexual acts by a man with his own wife… is not rape.”
Despite a decade-long campaign to change this law, Prime Minister Narendra Modi’s government retained the controversial clause in an overhauled penal code introduced in July 2023.
In an affidavit submitted to the Supreme Court on Thursday, the interior ministry acknowledged that while marital rape should have “penal consequences,” it should not be treated as harshly as rape committed outside of marriage.
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“A husband certainly does not have any fundamental right to violate the consent of his wife,” the affidavit read, as reported by The Indian Express. However, the government argued that equating marital rape with other forms of rape could be considered “excessively harsh.”
Currently, India’s penal code mandates a minimum 10-year sentence for rape.
The government maintains that laws addressing domestic violence, including a 2005 act that recognizes sexual abuse as a form of domestic violence, adequately cover instances of marital rape.
However, this law does not include criminal penalties for perpetrators.
In India, six percent of married women aged 18-49 have reported spousal sexual violence, according to the latest National Family Health Survey (2019-2021).
This means over 10 million women have been victims of sexual violence at the hands of their husbands. The survey also found that nearly 18 percent of married women feel they cannot refuse their husbands’ sexual advances.
Despite these alarming statistics, divorce remains stigmatized in much of India, with only one in every 100 marriages ending in divorce, largely due to societal pressures.
The push to criminalize marital rape has faced significant delays in India’s slow-moving criminal justice system.
The case was referred to the Supreme Court after a split verdict in May 2022, when one judge ruled that while forced sex within marriage is objectionable, it cannot be equated with rape committed by a stranger.
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