Campaigners angry that marital rape is not to be criminalised under India’s long-awaited new penal code have been promised a ruling on the issue by the supreme court next month.
Human rights organisations, including the All India Democratic Women’s Association, have been petitioning India’s supreme court to make it a criminal offence. The court has in turn asked the government for a response.
The new code is due to come into effect on 1 July. The court has the power to ask for a legal amendment if it disagrees with the government’s argument that to criminalise marital rape would violate the “sanctity of marriage”.
Three new laws will replace the penal code inherited from the British colonial era, which was drafted under Lord Macaulay from the 1830s and enacted in 1860.
The home minister, Amit Shah, promised widespread reform of the penal code last August. He said the criminal justice system was informed by Victorian-era ideas of morality, particularly in relation to homosexuality (which was decriminalised in India in 2018) and marital rape.
India needed laws untainted by imperialism and reflecting modern aspirations and realities, such as the altered status of women, Shah said.
The new laws have a particular focus on crimes against women, though some critics say their scope has been exaggerated and that the changes are largely superficial.
The act of obtaining sex by promising marriage to a woman will be treated as a crime for the first time and will carry a 10-year sentence. The new law also specifically defines the notion of consent.
Yet the new laws stipulate that “sexual intercourse or sexual acts by a man with his wife, the wife not being under 18 years of age, is not rape”.
Ntasha Bhardwaj, a gender scholar, said: “It makes no sense. Not making marital rape a crime is nothing but Victorian thinking. It grants a man unlimited access to his wife’s body after marriage. This conflicts with the constitution, which protects women against violence and grants them equality.”
Bhardwaj suggested the government felt that more conservative voters may not be ready to accept marital rape as a crime.
Social conservatism was the reason given to the supreme court last year in relation to same-sex marriages when the Ministry of Law and Justice said that such marriages were “not compatible with the Indian family unit concept of a husband, a wife and children”.
The supreme court refused to legalise same-sex marriages and said it was up to parliament to debate the issue.
But Bhardwaj noted that other harmful practices rooted in tradition, such as dowries and child marriage, had been criminalised. “The cultural argument was invoked over child marriage – it was a very old and deep-rooted custom. But did that stop us from banning it?” she said.
The various petitions before the court – the exact number is unclear – also challenge another provision of the new laws, which stipulates imprisonment ranging from two to seven years for married men who rape wives from whom they have separated – lower than the mandatory minimum 10-year sentence otherwise applicable in cases of rape.
Shilpi Singh, director of the women’s rights group Bhoomika Vihar, said: “We believe in ‘my body, my rights’. After marriage, a man cannot take sex with his wife for granted. Without a new law, women will just face sexual exploitation.”
The Indian prime minister, Narendra Modi, has often called for “women-led development”. But for many women, the new penal code undermines this aspiration.
Modi has spoken frequently of women being at the centre of India’s transition to becoming a developed nation, torchbearers of economic growth through their empowerment, though India is among the bottom five countries in the world for economic participation, and 129th out of 146 countries for overall gender parity, according to the World Economic Forum’s 2024 global gender gap index.
Bhardwaj said: “It’s bizarre. The view of marriage that gives a man unlimited access to his wife’s body undercuts their empowerment. It contradicts the government’s slogan of ‘nari shakti’, or ‘woman power’, that it keeps invoking.”
