India government says criminalising marital rape ‘excessively harsh’

Marital rape is outlawed in more than 100 countries, including Britain which criminalised it in 1991.

But India remains among the three dozen countries – along with Pakistan, Afghanistan and Saudi Arabia – where the law remains on the statute books.

A number of petitions have been filed in recent years calling for striking down Section 375 of the Indian Penal Code, which has been in existence since 1860. The law mentions several “exemptions” – or situations in which sex is not rape – and one of them is “by a man with his own wife” if she is not a minor.

Campaigners say such an argument is untenable in modern times and that forced sex is rape, regardless of who commits it.

United Nations, Human Rights Watch and Amnesty International have also raised concerns about India’s refusal to criminalise marital rape.

But the Indian government, religious groups and men’s rights activists have opposed any plans to amend the law saying consent for sex is “implied” in marriage and that a wife cannot retract it later.

The courts have given contradictory judgements, sometimes allowing a husband to be tried for rape while at others dismissing the petition.

The case came to the Supreme Court after the Delhi high court in 2022 delivered a split verdict. The top court began hearings in August.