MUMBAI: India’s government has asked the country’s top court not to toughen criminal penalties against marital rape during an ongoing case brought by campaigners seeking to outlaw it.
The penal code introduced in the 19th century during British colonial rule of India explicitly states that “sexual acts by a man with his own wife … is not rape”.
Prime Minister Narendra Modi’s government enacted an overhauled code in July which retains that clause, despite the decade-long court challenge by activists seeking to make marital rape illegal.
India’s interior ministry filed an affidavit to the Supreme Court on Thursday (Oct 3) stating that while marital rape should result in “penal consequences”, the legal system should treat it more leniently than rape committed outside of marriage.
“A husband certainly does not have any fundamental right to violate the consent of his wife,” the affidavit said, according to The Indian Express newspaper.
“However, attracting the crime in the nature of ‘rape’ as recognised in India to the institution of marriage can be arguably considered to be excessively harsh.”
India’s current penal code mandates a minimum 10-year sentence for those convicted of rape.
The government’s statement said that marital rape was adequately addressed in existing laws, including a 2005 law protecting women from domestic violence.
That law recognises sexual abuse as a form of domestic violence but does not prescribe any criminal penalties to perpetrators.
Another section of the penal code punishes broadly defined acts of “cruelty” by a husband against their wife with prison terms of up to three years.
Six per cent of Indian married women aged 18 to 49 have reported spousal sexual violence, according to the government’s latest National Family Health Survey conducted from 2019 to 2021.
