Marital rape goes unpunished in India, criticizes government

Neu-Delhi, CNN – Die indische Regierung hat erklärt, die Kriminalisierung von Ehelicher Vergewaltigung sei „übermäßig hart“. Damit wurde ein schwerer Rückschlag für die Aktivisten im Vorfeld einer lang erwarteten Entscheidung des Obersten Gerichts angekündigt, die Millionen von Menschen in Indien über Generationen beeinflussen wird.

In India, it is not considered rape for a man to force sex or sexual acts against his wife's will while she is over 18 - due to an exception in a British colonial law.

Most Western and common law countries have long since changed this rule - Britain outlawed marital rape in 1991, and it is illegal in all 50 states in the US.

However, there are around 40 countries around the world that do not have laws dealing with the issue of marital rape. For those who do, penalties for non-consensual sex within marriage are "significantly lower" compared to other rape cases, he said United Nations Population Fund World Population Report 2021.

Resistance to criminalization

In India, activists have long been fighting against this clause, while the country's top court is currently considering petitions seeking a change after the Delhi High Court comes in 2022 shared judgment liked on this topic.

In formally rejecting these petitions, India's Home Ministry argued that a man should be "prosecuted" if he coerces his wife. However, punishing it as rape would “stress the marital relationship” and have “far-reaching effects on the institution of marriage.”

The government further said that classifying marital rape as a crime “could be viewed as excessively harsh and therefore disproportionate.” This written government statement represents India's clearest position on marital rape.

The impact on women

Proponents of criminalization said the government's arguments were not surprising, but represented a "step backwards" for women in an already highly patriarchal society sexual violence widespread be.

“It reflects India’s acceptance of sexual violence in our culture,” said Ntasha Bhardwaj, an expert in criminal justice and gender issues. “We have normalized that sexual violence is a part of being a woman in our country.”

In July, Prime Minister Narendra Modi's government revised the country's 164-year-old penal code with new criminal laws, but the marital rape exception remained.

The Indian government is also opposing the criminalization of marital rape, just two months after the Rape and the murder on a medical student in the city of Kolkata sparked nationwide outrage and protests. Hundreds of doctors went on strike to demand better protection for health workers.

On Monday a man became charged with her rape and murder, an official source from the Central Investigation Team told CNN.

The government's argument

In arguing against criminalization, the Indian government stated that a woman's consent was protected in marriage, but there was "a continuing expectation by both spouses that the other has appropriate sexual access."

It further added that "although these expectations do not give the husband the right to force or coerce his wife into sexual activity... the consequences of such violations within marriage are different from those outside of marriage."

The government also claimed that existing sexual and domestic violence laws were sufficient to “protect consent within marriage.”

Mariam Dhawale, general secretary of the All India Democratic Women's Association - one of the plaintiffs fighting for criminalization - said that consent inside and outside marriage are "not two different things".

“Consent is consent,” she said. "In our country, a woman is not considered an independent person, an independent citizen of the country. She is considered rather a kind of appendage of the husband. She is subordinate and does not have a separate identity."

Challenges for women

Dhawale explained that marital rape is a large part of the violence reported by women who seek help from her organization. Many people avoid making their accusations public.

“Because they know no one will believe them and it won’t be seen as a crime,” she added.

This rethink requires more than just a change in the law, but it is the “first step,” Bharadwaj said. "It is a cultural revolution that is underway. Until you make a clear statement that this is not acceptable, the culture will never change; because in the absence of such a law, the culture will accept this violence."

Women who file rape charges in India have some legal recourse against their husbands, but advocates of criminalization argue that current laws do not go far enough.

For example, women can apply for an injunction under civil law or file a complaint under Section 354 of the Indian Penal Code, which deals with sexual assault other than rape, as well as Section 498A, which is specifically designed to punish women in the context of dowry violence, and the Indian Domestic Violence Act.

However, the laws are open to interpretation and women face hurdles even when attempting to lodge an initial police complaint recent studies show.

Need for change

A judge in Madhya Pradesh in May dismissed a complaint from a woman suing her husband for "unnatural sexuality," citing the marital rape exception and noting in her ruling that in such cases "the woman's consent is irrelevant."

Dhawale explained that many women remain trapped in violent households with no real alternative, especially if they are financially dependent on their husband. "We have no safe places, shelters or institutions. Therefore, she has to stay within these four walls. She cannot complain because if she does, she has no place to go; no one will stand by her unless it is recognized as a crime."

A woman who suffered sexual abuse at the hands of her husband has explained to CNN, that she believes criminalizing marital rape is necessary because it will “give women the strength to come forward and end their abuse.”

Another woman also told CNN, that she was too scared to leave her husband because she had no way to support her three children. Banning marital rape is necessary “for women like me who have no option to leave,” she said.

Criticism of the government

India's Supreme Court raised the marriage age of consent from 15 to 18 in a landmark ruling in 2017. In making the decision against child marital rape, veteran jurist Jayna Kothari argued. She told CNN that the government at the time had made similar arguments against raising the age of consent, claiming it would threaten the institution of marriage.

“The Supreme Court refuted that argument,” she said.

Kothari is certain that recognizing marital rape is “a crucial way in which the equality of women within marriage is substantially advanced.”

Likewise, Dhawale said that “the value of marriage or harmony in the home is actually disturbed by the man who commits violence, not by the woman who demands justice”.

A major concern of the government and men's rights organizations is that a marital rape law could lead to false accusations by women against their husbands. Kothari argued that it is already extremely difficult for women to report sexual violence, even when laws support them.

“Any allegations of domestic violence abuse are largely untrue because it takes immense effort for women to come forward,” she said.

"It's not like the flood gates are going to open and hundreds of cases of marital rape are going to be reported. It's still going to be very difficult."