An Indian woman has accused her husband of repeatedly forcing her to have “unnatural sex”. Although – according to court documents – her husband threatened her with divorce if she told anyone about it. However, the court found that rape within marriage is not a crime. This judgment has reignited the discussion about the loophole in Indian law that does not provide adequate protection to women.
The Supreme Court in the Indian state of Madhya Pradesh dismissed the complaint of a woman who accused her husband of “unnatural sex”. It was argued that under Indian law, it is not illegal for a husband to force his wife to engage in sexual activity.
The ruling was delivered last week by Justice Gurpal Singh Ahluwalia.
He allegedly forced his wife to have sex “repeatedly.”
According to court documents, the woman told police that her husband came to her home in 2019 – shortly after their wedding – and engaged in “unnatural sex”, which falls under Art. 377 of the Indian Penal Code.
The crime includes forced “carnal intercourse against the order of nature with any man, woman or animal.” In the past, the regulation was used to prosecute same-sex couples who had consensual sexual intercourse, before the country decriminalized homosexuality in 2018.
The complainant claimed that the act had happened “multiple times” and that her husband had threatened her with divorce if she told anyone about it. Eventually, she decided to talk to her mother about it. This encouraged her to file a complaint, which was received in 2022.
Women in India are protesting. They want to make marital rape punishable (archive video)Reuters Archive
When he is over 15, “his wife's consent becomes irrelevant”
The husband denied his wife's allegations in court. His lawyer argued that what he called “unnatural sex” between the couple was not a crime because they were married.
Delivering the verdict, Justice Ahluwalia drew attention to the provisions on marital rape in Indian law. They assume that forcing your wife to have sex is not a crime. The exclusion from punishment for this act is a remnant of British rule in India, even though India gained independence almost 80 years ago.
Indian law does not criminalize marital rapeShutterstock
The judge said that if intercourse occurs “with a wife of not less than fifteen years of age, then the wife's consent becomes irrelevant.” – Marital rape has not been recognized so far – he added.
Moreover, the woman also accused her in-laws of mental and physical abuse due to their failure to provide the dowry they demanded.” This trial is ongoing.
Being a woman in India. “Crime was invisible”
Following a court ruling in Madhya Pradesh, India, the discussion about women's rights in a highly patriarchal society has once again flared up. They are still at risk of violence and discrimination.
Women in India have been protesting and demanding their rights for yearsShutterstock
Although India, with a population of over 1.4 billion, has made significant progress in introducing laws to better protect women, lawyers and social activists warn that the reluctance to criminalize marital rape leaves a gap in this area and deprives women of protection. Conservatives say state interference could destroy marriages in India.
The current law, excluding marital rape from punishment, was questioned in many courtrooms. The Delhi High Court issued a split judgment in this regard in 2022, prompting lawyers to appeal to the country's Supreme Court. Still waiting for diagnosis.
As one lawyer claims, crimes against women have so far been “invisible”Shutterstock
Indira Jaising, a lawyer fighting to ban marital rape, estimated that “many women will benefit” from the repeal of this provision. She appealed to the court to urgently address the matter. According to her, rapid progress in this matter will be a “signal” to everyone that violence against women is an important issue.
In 2017, the Indian Supreme Court announced a landmark judgment in which it increased the legal age for marriage from 15 to 18.
Legal liability is possible
According to a 2019-2021 government survey in India, 17.6 percent of over a hundred thousand women aged 15-49 said they were unable to refuse sex from their husbands, even if they didn't want to. However, 11 percent believed that husbands had the right to hit or beat their wives if she refused.
Women who have been raped by their husbands have the option of taking certain legal steps. They can, for example, seek a restraining order (under civil law) or bring charges under Art. 354 of the Indian Penal Code, which deals with sexual assault other than rape, or Art. 498A, which deals with domestic violence.
As lawyer Karuna Nundy pointed out in an interview with CNN, these provisions can be interpreted quite openly, and judges can use them to impose prison sentences for sexual assault in cases where a married woman reports rape. However, many of them do not do this.
According to a study reported by CNN, many married women are also ignored when they try to file a police complaint.
Main photo source: Shutterstock