Indian women. Photo Credit: Google
An Indian judge has dismissed the complaint of a woman who claimed that her husband committed “unnatural sex,”.
The judge said it is not illegal for a husband to force his wife to engage in sexual acts under the Indian law.
The ruling, made in the Madhya Pradesh High Court last week, highlighted a legal loophole in India that doesn’t criminalise marital rape by a husband against his wife if she’s over age 18, CNN reports.
The woman told police her husband came to her house in 2019, soon after they were married, and committed “unnatural sex,” under Section 377 of India’s penal code, according to the Madhya Pradesh High Court order.
The offence includes non-consensual “carnal intercourse against the order of nature with any man, woman or animal,” and was historically used to prosecute same-sex couples who engaged in consensual sex before the Supreme Court decriminalized homosexuality in 2018
The woman also alleged the act happened “on multiple occasions,” and that her husband had threatened to divorce her if she told anyone about it. She finally came forward after telling her mother, who encouraged her to file a complaint in 2022, the court heard.
Meanwhile, the husband challenged his wife’s complaint with his lawyer claiming that any “unnatural sex” between the couple was not criminal as they were married.
Delivering his judgement, Justice Gurpal Singh Ahluwalia stressed India’s marital rape exemption, which does not make it a crime for a man to force sex on his wife, a relic of British rule more than 70 years after independence.
“When rape includes insertion of penis in the mouth, urethra or anus of a woman and if that act is committed with his wife, not below the age of fifteen years, then the consent of the wife becomes immaterial … Marital rape has not been recognized so far,” the judge said.
India’s Supreme Court increased marital consent from the age of 15 to 18 in a landmark judgment in 2017.
The woman also accused her in-laws of mental and physical harassment “on account of non-fulfilment of demand of dowry,” the court order said. A trial is pending.
Ahluwalia’s remarks have once again raised questions over India’s treatment of women, who continue to face the threat of violence and discrimination in the deeply patriarchal society.
The world’s largest democracy of 1.4 billion has made significant strides in enacting laws to better safeguard women, but lawyers and campaigners say its reluctance to criminalize marital rape leaves women without adequate protection.
According to the 2019-2021 National Family Health Survey by the Government of India, 17.6% of more than 100,000 women ages 15-49 surveyed said they were unable to say no to their husband if they didn’t want sex, while 11% thought husbands were justified in hitting or beating his wife if she refused.