The Indian government has argued in a current Supreme Court case that marital rape should be treated differently from other forms of rape, despite campaigners’ efforts to outlaw it.
The penal code, established during British colonial rule in the 19th century, explicitly exempts “sexual acts by a man with his wife” from being classified as rape.
In July, Prime Minister Narendra Modi’s government revised the code, maintaining this exemption, despite activists’ decade-long push to criminalise marital rape.
In a filing to the Supreme Court, the Indian Interior Ministry stated that while marital rape should have consequences, it should be treated less severely than rape outside of marriage.
The affidavit acknowledged that a husband has no right to violate his wife’s consent but argued that classifying it as “rape” within marriage could be considered excessively harsh. Under India’s current penal code, those convicted of rape face a minimum 10-year sentence.
The government argued that existing laws, including a 2005 law protecting women from domestic violence, adequately address marital rape. Although these laws recognise sexual abuse as a form of domestic violence, it does not specify criminal penalties for perpetrators.
Additionally, another section of the penal code punishes broadly defined acts of “cruelty” by a husband against his wife with prison terms of up to three years.
According to the government’s latest National Family Health Survey (2019-2021), over 10 million women in the country have been victims of sexual violence at the hands of their husbands. The survey also revealed that nearly 18 per cent of married women feel unable to refuse sex if their husbands demand it.
Divorce remains socially stigmatised in India, with only one in every 100 marriages ending in dissolution, often due to pressure to sustain unhappy marriages.
Chronic backlogs in India’s criminal justice system mean that some cases take decades to resolve, contributing to the slow progress of the case seeking the criminalisation of marital rape.
This case was referred to the Supreme Court following a split verdict in the Delhi High Court in May 2022, where one judge ruled that while non-consensual sex within marriage is disapproved, it should not be equated with stranger rape.