On February 11, the Chhattisgarh High Court overturned a ruling by a Bastar sessions court that had convicted a man, arrested in 2017, of sexually assaulting his spouse so severely that she died from physical injuries caused by the attack. He had been sentenced to rigorous imprisonment for ten years. Upon appealing the conviction and taking it to the High Court, the accused was cleared of all charges, specifically those under Sections 376 (rape), 377 (unnatural sex) and 304 (culpable homicide) of the Indian Penal Code.
Justice Narendra Kumar Vyas, citing IPC Section 375 which legally defines rape, issued a verdict stating that "If the age of wife is not below age of 15 years then any sexual intercourse or sexual act by the husband with his wife cannot be termed as rape as such absence of consent of wife for unnatural act loses its importance." The term “unnatural sex” is outdated and not inclusive, but in this case refers specifically to the man forcing his hand into the deceased’s rectum. Before she passed away, the victim had made a declaration recorded by an executive magistrate that she had experienced physical illness due to the assault.
Last year, when news about the remarkable survivor Gisèle Pelicot – who waived her right to anonymity and initiated a public trial against her husband, who had invited dozens of men to rape her while she was sedated over the course of several years – emerged out of France, some asked the question: “What would have happened if this had happened in India?”
The answer remains obvious: nothing, or at least not much. The main perpetrator would have been cleared of charges, since rape within marriage is simply not recognised by Indian law. Other perpetrators may have been found guilty, but this is speculative. The only fact we have is that as far as Indian courts and society are concerned, marital rape not only doesn’t exist but cannot exist.
It cannot exist because a man’s right to have sex with his wife, whether or not she wants to – “The absence of consent loses importance” – is deemed paramount.
This line of thinking may currently have widespread favour in Indian culture, but legally speaking its influence comes from the English jurist Matthew Hale who wrote in a work published in 1736 that “The husband cannot be guilty of rape committed by himself upon his lawful wife.” The Indian Penal Code was derived from colonial British law, and retains aspects of it. Hale didn’t like women, which we know from his anti-witchcraft trials, which influenced the infamous Salem witch trials later. It’s easier for a misogynist to accept the existence of witches than of marital rape.
In October 2024, the Centre informed the Supreme Court of India that the criminalisation of marital rape “would have far reaching socio-legal implications”. The Centre opposes this because it does not consider those implications favourable. It is true that there would be far reaching socio-legal implications if India changed its laws to recognise marital rape and punish it accordingly. But those implications would bring relief, security and genuine progress to all – except those who think women are chattel.