An Indian judge has dismissed a woman's complaint that her husband committed “unnatural sex” because under Indian law it is not illegal for a husband to force his wife to perform sexual acts.
The decision, made in the Madhya Pradesh High Court last week, sheds light on a legal loophole in India that does not criminalize marital rape committed by a husband against his wife if she is over 18 years old.
Activists have been trying to change the law for years, but say they face conservatives who argue that state interference could destroy India's marriage tradition.
A challenge to the law has been making its way through the country's courts, with the Delhi High Court issuing a split verdict on the issue in 2022, prompting lawyers to file an appeal in the country's Supreme Court that is still awaiting hearing.
According to the Madhya Pradesh High Court order, the woman told police that her husband came to her house in 2019, shortly after they got married, and committed “unnatural sex” under Section 377 of the penal code. from India.
The crime 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.
According to court documents, the woman claimed the act happened “on multiple occasions” and that her husband threatened to divorce her if she told anyone. She eventually told 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 since they are married.
Delivering his judgment in the trial, 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 the law of British rule more than 70 years after independence .
“When a rape includes the insertion of the penis into the mouth, urethra or anus of a woman and if this act is committed with his wife, not less than fifteen years of age, 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 15 to 18 in a landmark judgment in 2017.
The woman also accused her in-laws of mental and physical harassment “for non-compliance with dowry demand”, the court order said. A trial is pending.
Ahluwalia's remarks have once again raised questions about India's treatment of women, who continue to face the threat of violence and discrimination in a deeply patriarchal society.
The world's largest democracy, with 1.4 billion people, has made significant progress in enacting laws to better protect women, but lawyers and activists say a reluctance to criminalize marital rape leaves women without adequate protections.
According to the government of India's National Family Health Survey 2019-2021, 17.6% of more than 100,000 women aged 15 to 49 interviewed said they were unable to say no to their husband if they didn't want sex, while 11% believed that husbands were justified in hitting or spanking their wife if she refused.
Women who allege rape in India have some options for legal action against their husbands. For example, they can seek a restraining order under civil law or charges under Section 354 of the Indian Penal Code, which covers sexual assault other than rape, and Section 498A, which covers domestic violence.
These laws are open to interpretation and judges can use them to impose prison sentences for sexual assault in cases where a married woman has alleged rape, but many do not, lawyer Karuna Nundy previously told CNN .
Many married women are also ignored when they try to file a complaint with the police, a 2021 study showed.
The study examined records from three public hospitals in Mumbai between 2008 and 2017 and found that out of 1,664 rape survivors, none of the cases were filed by the police. At least 18 of these women reported marital rape to police, including 10 women who claimed they had been raped by an ex-partner or ex-husband.
Four women were explicitly told by police that they could do nothing as marital rape was not a crime, the report states.
*With information from Esha Mitra, from CNN.
Source: CNN Brasil
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