The Indian government formally opposes attempts to criminalize marital rape

New Delhi — India’s government has told the country’s Supreme Court that criminalizing marital rape would be “too harsh” as it objects to court requests to change a colonial-era British law that says a man cannot be prosecuted for marital rape.

India’s Home Ministry, in a written response sent Thursday to petitions filed in the high court, argues that while a man should face “criminal consequences” for raping his wife, criminalizing the act “may seriously affect marital relations and may lead to serious disruption” in the institution marriage.”

“A husband certainly has no fundamental right to violate his wife’s consent,” the government said in its statement. “However, linking the crime of ‘rape’, recognized in India, with the institution of marriage can undoubtedly be considered too harsh.”

Section 375 of the Indian Penal Code, which has been in force since 1860 and deals with rape, exempts men from raping their wives unless the woman in question is a minor. Prime Minister Narendra Modi’s government adopted a revised penal code in July that retained provisions on marital rape.

Marital rape it is a crime in over 100 countries and in all 50 US states, where it was made a crime in the mid-1990s. But India is among the countries – along with Afghanistan and Saudi Arabia – where it is not illegal for a man to rape his wife.

The Indian government argues that married women already have sufficient legal protection against sexual and domestic violence. A government statement this week said the issue of marital rape was included in the 2005 law protecting women from domestic violence.

This law recognizes sexual abuse as a form of domestic violence but does not clearly define penalties for it. Another article of the penal code provides for a sentence of up to three years in prison for men found guilty of acts broadly described as “cruelty” towards a spouse.

Same-sex marriage is currently not allowed in India.

Marital violence is rampant in India. Six percent of married Indian women reported sexual violence by their husbands, according to the latest government Family Health Survey 2019-2021.

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years opposed petitions to change rape laws, often arguing that sexual consent is “implied” by marriage and cannot be withdrawn.

Human rights activists say this argument is outdated, especially as cases of sexual violence against women rise in the country.

India continues to grapple with protests and strikes by medical workers in August rape and murder of a young doctor in the city of Kolkata.

Petitions seeking changes to the century-and-a-half-old rape laws have been submitted to the Supreme Court of India after the lower Delhi High Court issued a split judgment on the matter in 2022. Arguments in this case are expected to continue for months before a verdict is reached.