The government of India requested Supreme Court not to meet stricter penalties for marital rape.
This is because activists have been raising their voices against the legal recognition of its ban, reasoning that the current laws are too old and insufficient.
The existing penal code, inherited from the British colonial era in the 19th century, explicitly states that “sexual acts by a man with his wife […] is not rape.”
Despite the public outcry, Prime Minister Narendra Modi’s government maintained this provision in an updated code enacted in July.
On Thursday, India’s interior ministry submitted an affidavit to the Supreme Court, suggesting that while marital rape should incur “penal consequences,” authorities should not treat it as severely as rape outside of marriage.
The affidavit noted, “A husband certainly does not have any fundamental right to violate the consent of his wife,” but argued that classifying marital rape as “rape” could be seen as excessively harsh.
Under the current law, a minimum sentence of 10 years applies to those convicted of rape. The government contended that existing laws, including a 2005 act that protects women from domestic violence, sufficiently address the issue of marital rape.
While this law recognizes sexual abuse as a form of domestic violence, it does not impose criminal penalties on offenders.
Furthermore, another section of the penal code penalizes broadly defined acts of “cruelty” by husbands, with potential prison sentences of up to three years.
According to the latest National Family Health Survey, approximately 6% of married women aged 18 to 49 reported experiencing spousal sexual violence, indicating that over 10 million women in India have faced sexual violence from their husbands.
The survey also revealed that nearly 18% of married women feel they cannot refuse sex when their husbands demand it.
Divorce remains a stigma in many parts of India, with only 1 in every 100 marriages ending in dissolution, often due to societal and familial pressure to remain in unhappy unions.
Moreover, chronic backlogs in India’s criminal justice system mean that some cases can take decades to resolve.
The case advocating for the criminalization of marital rape has progressed slowly, recently referred to the Supreme Court following a split verdict by a two-judge bench in the Delhi High Court in May 2022.
One judge acknowledged that while a husband forcibly having sex with his wife may be disapproved of, it “cannot be equated with the act of ravishing by a stranger.”
