Indian Woman Accuses Her Husband of Forcing Her to Have ‘Unnatural Sex’, But Judge Dismisses Her

The decision, handed down last week in the Madhya Pradesh High Court, highlights a legal loophole in India, which does not criminalize marital rape by a husband against his wife if she is over 18.

Activists have been trying for years to change that law, but say they are up against conservatives who say state intervention could destroy the tradition of marriage in India.

A challenge to the law has made its way through the country’s courtrooms, with the Delhi High Court delivering a split verdict on the issue in 2022, prompting lawyers to appeal to the country’s Supreme Court, which is still waiting to be discussed.

According to the Madhya Pradesh High Court order, the woman told police that her husband came home in 2019, shortly after they got married, and committed “unnatural sex” under Section 377 of the Indian Penal Code .

The offense includes “non-consensual sexual intercourse against the natural order with any man, woman or animal” and was used to prosecute same-sex couples who had consensual sex before the Indian state decriminalized homosexuality in 2018.

She was threatened with divorce

According to court documents, the woman claimed the act happened “on several occasions” and that her husband threatened to divorce her if she told anyone about it. She eventually reported the incident after telling her mother, who encouraged her to file a complaint in 2022.

The husband challenged his wife’s complaint in court, with his lawyer arguing that any “unnatural sex” between the two was not a crime because they were married.

Delivering the ruling, Justice Gurpal Singh Ahluwalia pointed out that there is an exception for marital rape in India, which does not make it a crime for a man to force his wife to have sex, a relic of British rule more than 70 years after independence.

“(…) If this act is committed with his wife, who is not less than 15 years old, then the wife’s consent becomes irrelevant… Marital rape has not been recognized until now,” the judge declared.

India’s Supreme Court raised the age of marital consent from 15 to 18 in a landmark ruling in 2017.

The woman also accused her in-laws of mental and physical harassment “due to non-compliance with the dowry demand”, the court ruling states. A trial is underway.

Society’s reluctance to criminalize rape

Ahluwalia’s comments again raised questions about India’s treatment of women, who continue to face violence and discrimination in a deeply patriarchal society.

The world’s largest democracy, with 1.4 billion people, has made significant strides in passing laws to better protect women, but lawyers and campaigners say the reluctance to criminalize marital rape leaves women without a adequate protection.

According to the Indian government’s National Family Health Survey 2019-2021, 17.6% of the more than 100,000 women aged 15-49 surveyed said they were unable to say no to their husband them if they did not want to have sex, while 11% felt that husbands were justified in hitting or beating their wives if she refused.

Women who claim they have been raped in India have several avenues of legal action against their husbands.

For example, they can seek a restraining order under civil law or make charges under Section 354 of the Indian Penal Code, which deals with sexual assaults other than rape, and Section 498A, which deals with domestic violence.

Those laws can be interpreted and judges can use them to impose prison terms for sexual assault if a married woman claims she was raped, but many don’t, attorney Karuna Nundy told CNN.

Also, many married women are ignored when they try to file a complaint with the police, a 2022 study showed.

The study examined records from three public hospitals in Mumbai from 2008 to 2017 and found that out of 1,664 rape victims, not a single case reached the police for investigation. At least 18 of these reported spousal rape to the police, including 10 women who claimed to have been raped by a former partner or husband.

Four women were explicitly told by the police that they could do nothing because marital rape was not a crime, the report said.

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