An Indian woman accused her husband of forcing her to have ‘unnatural sex.’ A judge said that’s not a crime in marriage

An Indian judge dismissed a woman’s complaint about her husband engaging in “unnatural sex,” citing Indian law that doesn’t consider it illegal for a husband to force his wife into sexual acts.

The ruling, issued in the Madhya Pradesh High Court last week, highlights a legal gap in India that doesn’t criminalize marital rape by a husband against his wife, provided she’s over 18 years old.

Efforts to change the law have been ongoing for years, but activists face opposition from conservatives who argue that state intervention could undermine the institution of marriage in India.

A legal challenge to this law has been progressing through India’s courts, including a split decision by the Delhi High Court in 2022, which led to an appeal to the Supreme Court that is pending.

As per the Madhya Pradesh High Court ruling, the woman reported to the police that her husband engaged in “unnatural sex” with her in 2019, shortly after their marriage, under Section 377 of India’s penal code. This section covers non-consensual “carnal intercourse against the order of nature with any man, woman, or animal” and was historically used to prosecute same-sex couples before homosexuality was decriminalized in 2018.

The woman alleged that this act occurred “multiple times” and that her husband threatened divorce if she spoke about it. She eventually came forward in 2022 after confiding in her mother, who advised her to file a complaint.

In court, the husband’s lawyer argued that any “unnatural sex” between them wasn’t criminal due to their marital status.

Justice Gurpal Singh Ahluwalia, delivering the judgement, referenced India’s exemption for marital rape, stemming from British-era laws, which doesn’t consider it a crime for a husband to force sex on his wife.

The judge said, “Marital rape has not been recognized so far,” referring to India’s legal stance that does not require spousal consent for sexual acts if the wife is over 15 years old (raised to 18 by a 2017 Supreme Court ruling).

The woman also accused her in-laws of mental and physical harassment related to dowry demands, and a trial is pending.

These legal nuances underscore ongoing questions about how India treats women, particularly in a society with deep patriarchal roots, where women still face violence and discrimination.

Although India has enacted laws to protect women, the absence of criminalizing marital rape leaves many without sufficient legal recourse.

A government survey from 2019-2021 revealed that a significant percentage of women felt unable to refuse sex with their husbands, and some believed husbands were justified in violence if their advances were rejected.

While women can pursue civil restraining orders or charges under other sections of the Penal Code for sexual assault and domestic violence, the application and enforcement of these laws vary, leaving many women without effective legal protection, as reported in a 2022 study.