The Indian government has just proved that women are safer outside a marriage than within one. The centre’s recent stance on marital rape is disappointing to millions of Indian women, but wholly unsurprising. The NDA is neither the first nor will it be the last government to fail Indian women.
This most recent blow comes from the Union Ministry of Home Affairs. It filed an affidavit in the Supreme Court, which is reviewing petitions challenging the constitutionality of the marital rape exception under Section 375 of the Indian Penal Code. The affidavit asserted that labelling marital rape as a criminal offence was “excessively harsh” and could destabilise the institution of marriage.
Let’s unpack some of its more troubling assertions. The government emphasised that this issue requires a “comprehensive approach” that originates from legislative bodies rather than judicial intervention, citing potential socio-legal implications. In marriage, states the affidavit, “there exists a continuing expectation, by either of the spouses, to have reasonable sexual access from the other”, while clarifying these expectations do not entitle the husband to force his wife into sex against her will. It also contended that “…the sexual aspect is but one of the many facets of the relationships between husband and wife, on which the bedrock of their marriage rests.” The affidavit also expressed concerns about the potential misuse of laws and highlighted that such a change could disrupt conjugal relationships.
There’s plenty in there to rail against, but for a moment, let’s focus on the language the centre used to put forward its argument about the “sexual aspect”. Where have we heard this argument before? You might remember it from the time the Karnataka High Court upheld the hijab ban, arguing that it isn’t an essential practice of Islam—and individual consent could take a hike. Now the same flawed logic is applied to marital rape, as if consent becomes optional once you’ve signed a marriage certificate. But using the essentiality doctrine to cherry-pick which practices are core to an institution cannot justify trampling on individual rights.
The implications of this stance are far-reaching and deeply concerning. This begs the question: Whose individual rights are important? Who is worthy of protection from excessive harshness? What “comprehensive approach” do we need around consent within a marriage, when we don’t need one outside it? And what about the inherent misogyny that believes such a law will be misused by women because no man ever has misused any law?
How have we arrived in 2024, where summarily divorcing your wife can land you in jail, but sexually assaulting her will not?
Also read: Indian courts are increasingly progressive in all areas except one—marriage
Stark irony
The fight to criminalise marital rape in India is rooted in the 17th-century Doctrine of Hale, which treated women as property of their husbands upon marriage. This archaic British legal principle has been overturned in the UK, but even 300 years later, continues to dangle over the necks of Indian women. In 2012, the Justice Verma Committee, instituted in the wake of the Delhi gang rape, recommended that the marital rape exception be removed. The then-Congress government had opposed it, citing concerns about the “sanctity of marriage”, and the current BJP-led government maintains this stance—divided by party lines, united in turning a blind eye to the sanctity of a woman’s bodily autonomy.
While several Opposition leaders have now labelled the centre’s arguments regressive, these views have been echoed by the BJP for years now. In 2015, Haribhai Parthibhai Chaudhary, Minister of State for Home Affairs said in a written statement that “the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context.” The reasons were illiteracy, poverty, and religious beliefs. The following year, Minister for Women and Child Development Maneka Gandhi—well known for her tireless activism for Indian stray dogs—regurgitated the same claims.
Maybe I’m mistaken, but I’ve never witnessed illiteracy, poverty or religious beliefs being trotted out as reasons to not undertake large-scale social projects. Did illiteracy stop the widespread implementation of Aadhaar? Or did poverty prevent the government from demonetising currency? Or did religious beliefs come in the way of announcing overnight lockdowns during Covid-19? Why then, are married Indian women—but not Indian men—asked to worry about the sanctity of marriage when it comes to sexual consent?
Despite this entrenched resistance, there have been glimmers of hope in recent years. High courts in many parts of India have displayed exceptional courage in recognising the constitutional rights of married women. In 2018, the Gujarat High Court, while hearing a case of a man accused of rape and domestic violence by his wife, asserted that marital rape “ought to be a crime and not a concept.” The Kerala High Court’s 2021 ruling, in a case where a woman sought divorce on grounds of marital rape, recognised such acts as valid grounds for marital dissolution. Yet, the Supreme Court’s 2022 stay on a Karnataka High Court order—which had refused to quash charges against a man accused of brutally raping his wife—underscores the ongoing legal ambiguity.
The irony is stark: While the centre opposes criminalising marital rape, its own data from the National Family Health Survey (NFHS-5) reveals that about 30 per cent of women in India have experienced spousal violence—and 6 per cent of women have experienced sexual violence from their husbands. That’s millions of women, their voices silenced by institutions meant to protect them—and these are just the reported cases.
Also read: Men on ‘marriage strike’ against marital rape laws. Some people laugh, say good riddance
The sanctity of marriage
While India clings to its Colonial-era laws, much of the world has moved on. The UK criminalised marital rape in 1991, and Bhutan and Nepal beat us to it in 2004 and 2006. Even Pakistan, often the yardstick against which we measure our progress, recognised marital rape as a form of domestic violence in 2006. Across the border, we’ve criminalised domestic violence and outlawed dowry (much to the unhappiness of Men’s Rights Activists), but somehow, we can’t bring ourselves to say that forcing sex on an unwilling spouse is a crime.
These already disturbing contradictions reach a most sinister apotheosis where child marriage intersects with marital rape. In a landmark ruling in 2017, the Supreme Court upheld the age of consent as 18 years. Instead of paving the path for criminalising marital rape, the government’s stance revealed a disturbing disconnect. It held that child marriage is illegal but also a persistent “social reality”, which creates a judicial grey area where underage brides, who cannot legally consent to sex, are left without protection from sexual abuse within these marriages. And the government’s refusal to criminalise such acts, which might “destabilise” these unions, is an illustration of where its priorities lie—in preserving marriage over the safety and rights of young girls.
We are striding into 2025 with aspirations to become the “Mother of Democracy” and a five-trillion-dollar economy but with a complete lack of comprehension of consent. These grand visions ring hollow when half our population is expected to leave their fundamental rights as soon as they stand at the wedding altar and at the threshold of their marital homes. After all, nothing screams “vibrant democracy” quite like telling a third of your female population that their bodies are no longer their own once they’re married.
What use do Indian women have for the “sanctity of marriage” when it tramples on our constitutional rights? If this is what “Sabka Vikas” looks like, maybe it’s time to ask: Vikas for whom, exactly? And at what cost?
(Edited by Theres Sudeep)
Vij, I dont buy the argument of misuse of laws as a justification to help rapists hiding at homes. All Laws are misused by everyone men, women and even the government. But still they are needed and most convictions happen after due application of evidence. False cases should attract a heavy penalty. And it is not just US but almost all countries have marital rape criminalised including Israel and Russia where rape in marriage is considered same as rape outside it.
The framework of marriage, family and child upbringing can all go up for a toss if rapists are not prosecuted. A wife who is regularly beaten and tortured for sex, forced to abort babies, filmed, asked to imitate degrading and insulting porn, drugged for rape etc by her husband has no way to prosecute her husband for this henious crime of marital rape. You are not thinking from the perspective of the women who is being raped in her marriage. The marriage system will surely collapse if women do not get protection from rape in it.
shameful journalism to satisfy masters throwing bread to you .doubting indian core values will ensure you perish with mental disease . all your efforts to destabiluise indiua will end in vain . this country is protected by selfless service of Rishis and Munis . shame on your jjournalism.
Divorce is getting more popular and now and is the more correct mechanism to address all issues including dowry etc. Why can women who get troubled for dowry not divorce their husbands and go home? The system is designed to incentivise bullying by both sides. Every womans family must introspect if they truly love their daughters and if their daughters feel safe returning in case of bad choices.
Indian men are expected to earn and supply money and resources no matter what. They lose their autonomy at the alter too. To claim otherwise is hypocrisy and victimhood.
Women should move out of the house if they think they are / will be raped. Equality has gone out of window in the current era of woman feminism. There are several Laws used by woman to falsely implicate men and this lady wants to add more to that. Stupidity disguised as intellectualism.
For people worried about evidence gathering for marital rape, I have only one advice please let your grey cells expand a bit and read laws of other countries that criminalize marital rape.
The whole context of the marital relationship is taken into account before prosecuting someone as per US laws.
Rape is the greatest abuse of the sanctity of marriage. If you want to protect marriages criminalise rape in it. Promoting marital rape only helps rapists hiding at homes.
It is definitely abuse to sanctity of marriage. There are no two opinions on it. And no one is promoting it. But can we compare usa and Indian marital and justice systems. Does the current status where criminal charges are used to harass family, extract money and remove access to children for flimsy grievances and to settle petty scores add to sanctity of marriage. Formulating things on paper and studying their actual use and ramifications on society is need of the hour. It is humbly requested that the author visit the nearest local court, talk to people, lawyers, police and judicial staff to understand how litigation affects the marital tie, family and most importantly children. Societal stability hinges on balance and judiciary is rightly concerned if it is upturned. The framework of marriage, family and child upbringing can all go up for a toss if you merely copy laws from usa, without due consideration. A rosy future where people shop at sperm banks, frozen eggs, surrogates and there is state support, corporate market for single parenting, awaits when sanctity and benefit of marriage is belied.
This is in reply to Mr. Vij’s comment.
The points you have raised are very much valid. In fact, I believe, the court raised these points in it’s verdict. However, these issues will be lost on someone like Ms. Taranjeet Kaur. She, quite clearly, lacks the grey matter required to understand the nuances of the situation.
Madam,
While principles stated are laudable, please tell us what are the standards of evidence that have to be met for successful prosecution. Especially when time lapses after the alleged event. How should the state intervene in the homes and bedrooms? How should it investigate? Should there be medical evidence? How and when should the withdrawal of consent be intimated, communicated and recorded? Or should we take women solely based on their words because they are the fairer sex ?