Criminalizing marital rape would be “excessively harsh,” the Indian government has said, in a blow to campaigners ahead of a long-awaited Supreme Court decision that will affect hundreds of millions of people in India for generations.
In India, it is not considered rape if a man forces sex or sexual acts on his wife, as long as she is over 18, due to an exception in a British colonial-era law.
Most Western and common law jurisdictions have long since rectified this – Britain outlawed marital rape in 1991, for example, and it is illegal in all 50 US states.
But across the world, about 40 countries do not have legislation that addresses the issue of marital rape – and among those that do, the penalties for non-consensual sex within marriage are “significantly lower” than other rape cases, according to the United Nations Population Fund’s 2021 State of World Population review.
Campaigners in India have long fought against the clause, with the country’s top court currently hearing petitions seeking to amend it, after the Delhi High Court delivered a split verdict on the issue in 2022.
In its formal opposition to those petitions, the government’s Ministry of Home Affairs argued a man should face “penal consequences” for forcing himself on his wife. But punishing it as rape would “severely impact the conjugal relationship” and “have a far-reaching effect on the institution of marriage.”
Classifying marital rape as a crime, “can be arguably considered to be excessively harsh and therefore, disproportionate,” the government said.
The government’s written affidavit is its clearest position yet on the issue of marital rape in India.
Advocates for criminalization said the government’s arguments were not surprising, but it represents a “step back” for women already living in a deeply patriarchal society where sexual violence is rampant.
“It speaks to India’s acceptance of sexual violence in our culture,” said Ntasha Bhardwaj, a criminal justice and gender scholar. “We’ve normalized that sexual violence is a part of being a woman in our country.”