An Indian judge dismissed the complaint of the woman who claimed that her husband committed “unnatural s3x.”
The judge said it is not
illegal for a husband to force his wife to engage in s3xual acts under the
Indian law.
The ruling, made in the Madhya
Pradesh High Court last week, highlighted a legal loophole in India that
doesn’t criminalise marital r3pe by a husband against his wife if she’s over
age 18, CNN reports.
The woman told police her
husband came to her house in 2019, soon after they were married, and committed
“unnatural s3x,” under Section 377 of India’s penal code, according to the
Madhya Pradesh High Court order.
The offence includes
non-consensual “carnal intercourse against the order of nature with any man,
woman or animal,” and was historically used to prosecute same-s3x couples who
engaged in consensual s3x before the Supreme Court decriminalized homos3xuality
in 2018
The woman also 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.
Meanwhile, the husband
challenged his wife’s complaint with his lawyer claiming that any “unnatural
s3x” between the couple was not criminal as they were married.
Delivering his judgement,
Justice Gurpal Singh Ahluwalia stressed India’s marital r3pe exemption, which
does not make it a crime for a man to force s3x on his wife, a relic of British
rule more than 70 years after independence.
“When r3pe 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 the consent of the wife
becomes immaterial … Marital r3pe 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 judgment in 2017.
The woman also accused her
in-laws of mental and physical harassment “on account of non-fulfilment 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 r3pe leaves women without adequate protection.
According to the 2019-2021
National Family Health Survey by the Government of India, 17.6% of more than
100,000 women ages 15-49 surveyed said they were unable to say no to their
husband if they didn’t want s3x, while 11% thought husbands were justified in
hitting or beating his wife if she refused.
Women alleging r3pe in India
have some avenues of potential legal action against their husbands.
For example, they can seek a
restraining order under civil law or charges under Section 354 of India’s Penal
Code, which covers s3xual assault short of r3pe, and Section 498A, which covers
domestic violence.
These laws are open to
interpretation and judges can use them to impose prison sentences for s3xual
assault in cases where a married woman has alleged r3pe, but many don’t, lawyer
Karuna Nundy previously told CNN.
Many married women are also
ignored when they try to file a police complaint, a 2022 study showed.
The study examined records from
three Mumbai public hospitals from 2008 to 2017 and found that of 1,664 r3pe
survivors, no r3pe cases were filed by police. At least 18 of those women
reported marital r3pe to the police, including 10 women who alleged r3pe by a
former partner or husband.
Four women were explicitly told
by police that they could not do anything as marital r3pe was not a crime, the
report said.
Over the years, Campaigners
have been trying to change the law but said they’re up against conservatives
who argue that state interference could destroy the tradition of marriage in
India.
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