Indian judge dismisses woman’s unnatural sex complaint against husband

By Esther Muhozi
On 6 May 2024 at 12:01

An Indian judge has dismissed a woman’s complaint alleging her husband’s engagement in "unnatural sex." The ruling, issued in the Madhya Pradesh High Court, highlighted a legal gap in India where marital rape isn’t considered a crime if the wife is over 18.

Efforts to change this law face resistance from conservatives fearing interference with marital traditions. Legal challenges have been ongoing, with a split verdict in the Delhi High Court in 2022 leading to an appeal in the Supreme Court.

The woman had reported the incident to the police, alleging that her husband had forced her into "unnatural sex" multiple times, accompanied by threats of divorce if she spoke out. Despite her bravery in coming forward in 2022, the husband’s defense leaned on the exemption of marital rape in Indian law, which dates back to British colonial-era laws.

Campaigners have been trying to change the law for years, but they say they’re up against conservatives who argue that state interference could destroy the tradition of marriage in India.

A challenge to the law has been winding its way through the country’s courtrooms, with the Delhi High Court delivering a split verdict on the issue in 2022, prompting lawyers to file an appeal in the country’s Supreme Court that is still waiting to be heard.

According to the Madhya Pradesh High Court order, 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.

The offense 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

According to court documents, the woman 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.

The husband challenged his wife’s complaint in court, with his lawyer claiming that any “unnatural sex” between the couple was not criminal as they are married.

Delivering his judgement, Justice Gurpal Singh Ahluwalia pointed to 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 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 judgement in 2017.

The woman also accused her in-laws of mental and physical harassment “on account of nonfulfilment 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.

The 2019-2021 National Family Health Survey conducted by the Indian Government revealed that approximately 17.6% of over 100,000 women aged 15-49 surveyed felt unable to refuse sexual advances from their husbands, and about 11% believed that husbands were justified in resorting to violence if their wives declined sex. In India, women who claim rape by their spouses have certain legal options available.

For instance, they can pursue a restraining order through civil law or file charges under Section 354 of the Indian Penal Code, which addresses sexual assault excluding rape, and Section 498A, which deals with domestic violence. However, the interpretation of these laws varies, and while some judges may enforce them with imprisonment in cases of alleged rape within marriage, many do not, as noted by lawyer Karuna Nundy in a CNN report. Furthermore, a study from 2022 highlighted that many married women face obstacles when attempting to lodge a police complaint.

This study, which examined records from three public hospitals in Mumbai spanning from 2008 to 2017, discovered that out of 1,664 survivors of rape, none had their cases officially registered by the police. Notably, among these survivors, at least 18 reported instances of marital rape to the authorities, including 10 cases involving rape by a former partner or spouse. Shockingly, four women were explicitly informed by the police that marital rape was not considered a crime, effectively dismissing their complaints.