India: Marital Rape Isn't Rape

Entering a marriage, a woman gives "implied" consent for sex with her husband, India's government told the country's Supreme Court on Thursday as it faces off against challengers to a 164-year-old law. Section 375 of the Indian Penal Code, dating back to British colonial rule, notes "sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape," per Business Standard. Challengers are demanding the law recognize non-consensual sex is rape no matter the situation. In a recent government survey, 6% of Indian married women, or more than 10 million, said they'd endured sexual violence from their husbands, while 18% said they feel they can't say no to marital sex, per AFP.

Yet it would be "excessively harsh" to classify forced sex within a marriage as rape, India's Ministry of Home Affairs said in a 49-page affidavit submitted Thursday. The ministry argued a husband "does not have any fundamental right to violate the consent of the wife," but that a woman is already protected by existing laws, including a 2005 law describing sexual abuse as a form of domestic violence, but without laying out criminal penalties. Criminalizing marital rape as well "may lead to serious disturbances in the institution of marriage" as the union comes with a "continuing expectation to have reasonable sexual access from one's spouse," it continued, per the BBC.

The government is essentially arguing the rape within a marriage should be treated more leniently than other rape offenses, which are subject to a minimum 10-year prison sentence, per AFP. It's the first time the government has made such a case. In 2022, when the issue came before the Delhi High Court, the government failed to take a clear stance, per Business Standard. The two-judge bench later delivered a split decision, prompting the Supreme Court to take up the case. While challengers have the backing of the United Nations, Human Rights Watch, and Amnesty International, the government says 12 of 15 states that responded to an inquiry supported retaining the marital rape exemption, as did the National Commission for Women, a statutory body. (More India stories.)