India’s government formally opposes bid to criminalize marital rape

New Delhi — India’s government has told the country’s Supreme Court that criminalizing marital rape would be “excessively harsh,” as it opposes petitions with the court seeking to amend a British colonial-era law that says a man cannot be prosecuted for rape within marriage.

India’s Interior Ministry, in a written response sent Thursday to petitions filed with the top court, argues that while a man should face “penal consequences” for raping his wife, criminalizing the act “may seriously impact the conjugal relationship and may lead to serious disturbances in the institution of marriage.”

“A husband certainly does not have any fundamental right to violate the consent of his wife,” the government says in its affidavit. “However, attracting the crime in the nature of ‘rape’ as recognized in India to the institution of marriage can be arguably considered to be excessively harsh.”

Section 375 of the Indian Penal Code, which has been in existence since 1860 and deals with rape, exempts men from charges of rape against their wives unless the woman in question is a minor. Prime Minister Narendra Modi’s government enacted an overhauled penal code in July that has retained that law on marital rape.

Rape within a marriage is a crime in more than 100 countries and all 50 U.S. states, where it was criminalized in the mid-1990s. But India is among the nations — along with Afghanistan and Saudi Arabia — where it is not illegal for a man to rape his wife.

The Indian government has argued that there are already sufficient legal protections for married women against sexual and domestic violence. The government’s affidavit this week says marital rape was addressed in a 2005 law protecting women from domestic violence.

That law recognizes sexual abuse as a form of domestic violence but does not explicitly lay out penalties for it. Another section of the penal code imposes a prison term of up to three years for men found guilty of acts broadly defined as “cruelty” against their spouse.

Same-sex marriage is not currently permitted in India.

Violence within marriage is rampant in India. Six percent of married Indian women have reported sexual violence at the hands of their husbands, according to the government’s latest National Family Health Survey, conducted from 2019 to 2021.

The government and various religious groups have opposed petitions seeking to amend the rape laws for years, often arguing that sexual consent is “implied” by marriage and cannot be retracted.

Rights activists say that argument is outdated, especially when cases of sexual violence against women are rising in the country. 

India is still facing protests and strikes by medical workers over the August rape and murder of a young female doctor in the city of Kolkata.

The petitions seeking changes in the century-and-a-half-old rape laws were filed with India’s Supreme Court after the lower Delhi High Court delivered a split verdict on the matter in 2022. Arguments in the case are expected to continue for months before a verdict is delivered.