An Indian judge has dismissed a woman’s complaint that her husband committed “unnatural sex,” because under Indian law it’s not illegal for a husband to force his wife to engage in sexual acts.
The ruling, made in the Madhya Pradesh High Court last week, shines a light on a legal loophole in India that doesn’t criminalize marital rape by a husband against his wife, if she’s over age 18.
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 decriminalized homosexuality in 2018
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.