Calls to criminalise marital rape in India renewed, as judge frees man accused of raping wife

NEW DELHI: Back in 2019, a lower Indian court in the central Indian state Chhattisgarh convicted a 40-year-old man of rape and “unnatural sex” with his wife, who died within hours of the alleged assault.

Her husband was held guilty of “culpable homicide not amounting to murder” and sentenced to “rigorous imprisonment” for 10 years.

But in February, the High Court of Chhattisgarh, while hearing the man’s appeal, acquitted him of all charges, arguing that he could not be considered guilty of either non-consensual sex or non-consensual unnatural sex because India does not recognise marital rape.

This controversial acquittal stunned many, and renewed focus on an ongoing campaign for India to strike down the legal exception for marital rape, a provision adopted from its colonial-era law, which dates back to the 19th century.

Rape within marriage is illegal in more than 100 countries, including Singapore. But India is among nations, such as Saudi Arabia and Afghanistan, where it is not a crime for a man to rape his wife.

Under the Indian Penal Code, which was in force for more than 160 years, rape could lead to life imprisonment or even the death penalty, but marital rape was not recognised as a crime.

This exception was retained in the new Bharatiya Nyaya Sanhita (BNS) criminal code, which came into effect in July 2024 and replaced the Indian Penal Code. The BNS states that sexual intercourse or acts by a man with his wife, provided she is above 18 years old, is not rape.

Mariam Dhawale, general secretary of the All India Democratic Women’s Association (Aidwa), told The Straits Times that this exception for marital rape is “a statement of patriarchy that tells the wife she has no right over her body” and that she must “please her husband as and when he wants it”.

She said: “It is as if she has absolutely no agency over her own self, which actually flouts the rights that the Indian Constitution gives us…the right to a life with dignity and the right to self choice.”

Referring to the Chhattisgarh verdict, Dhawale said even though the assault led to her death, it was not considered a crime because he was her husband. “It’s as if her life just doesn’t matter.”

A number of petitioners, including Aidwa, have urged the Supreme Court to strike down the legal exception for marital rape. The country’s top court is hearing several such petitions, but a fresh hearing in this case has not been held since October 2024. The case was deferred to be heard by the court with a new chief justice at the helm, who was sworn in in November.

These attempts to criminalise marital rape have met with opposition from the government, which told the court in October that applying penal provisions of rape within marriage would be “excessively harsh” and could destabilise the institution of marriage.

The government stated that marriage creates a continuing expectation, by either of the spouse, to have “reasonable sexual access from the other”.

It added that spousal violence can be dealt with under other provisions, such as the Protection of Women from Domestic Violence Act (2005), which defines “domestic violence” as abuse that is physical, sexual, verbal, emotional or economic. It does not, however, mention rape.

Rishika Rishabh, an advocate and a member of the legal team representing Aidwa, told ST that the 2005 law is inadequate in dealing with marital rape. This is not just because of the law’s weaker penalties, but also because, unlike anti-rape legislation, it does not provide special measures to help rape victims. These measures include immediate and free first-aid or medical treatment by hospitals.

Rishabh said the petitioners are seeking that the same penalties which apply in non-marital rape be applied to a husband found guilty of raping his wife.

“We are not saying that being the husband, you would be given harsher punishment. We are just saying that the relationship should be irrelevant in the case of a rape,” she said.

While violence within marriage is common in India, there are no reliable estimates of the extent of marital rape. According to a 2020 government survey, 6 per cent of married women said they had experienced spousal sexual violence.

But many believe marital rape could be more widespread with underreporting due to deep stigma preventing victims of such acts from coming out in the open.

A 2022 study published in Sexual and Reproductive Health Matters, a peer-reviewed open access journal, found that nearly half of 1,783 domestic violence survivors at a public hospital-based counselling centre in Mumbai disclosed experiencing marital rape while seeking support for domestic violence.

Sixty-eight per cent of these 828 marital rape survivors reported forced vaginal sex, and 8 per cent reported experiencing forced anal or oral penetration. Other forms of sexual violence mentioned included not allowing women to use any contraceptive and forcing them to have children, among others.

The women, who were mostly from a lower economic background, suffered not just physical health consequences such as forced pregnancies, abortions, reproductive tract infections and injuries to their private parts, but also mental trauma, with 26 per cent of them even attempting to take their own lives.

Sanjida Arora, one of the co-authors of the study, told ST that the failure to criminalise marital rape sends the message that the act is “a normalised thing”, which discourages survivors from reporting it to the police.

None of the 828 survivors in the study reported being raped by their husbands to the police. Instead, 48 per cent of them filed complaints of domestic violence with the police, reporting just physical, financial and emotional violence, but not sexual violence.

“For women, addressing sexual violence within her marriage is not a priority, unfortunately,” said Arora. “For her, the priority is that the husband should stop beating her and her children and should also provide money for household expenses.”

In all these cases, the police registered the women’s complaints of domestic violence as non-cognisable offences, a category that includes “minor offences”.

Criminalisation of marital rape is unlikely to bring improvement overnight, said Arora. She noted that behavioural change acknowledging that a husband too can be guilty of raping his wife would take time to come from stakeholders, including medical professionals, the police and family of the survivors.

“But, yes, at least the criminalisation will send a message that it is prevalent, unacceptable and needs to be addressed,” she added. – The Straits Times/ANN