Criminalizing marital rape would be “excessively harsh,” the Indian government has said, in a blow to campaigners ahead of a long-awaited Supreme Court decision that will affect hundreds of millions of people in India for generations.

In India, it is not considered rape if a man forces sex or sexual acts on his wife, as long as she is over 18, due to an exception in a British colonial-era law.

Most Western and common law jurisdictions have long since rectified this – Britain outlawed marital rape in 1991, for example, and it is illegal in all 50 US states.

But across the world, about 40 countries do not have legislation that addresses the issue of marital rape – and among those that do, the penalties for non-consensual sex within marriage are “significantly lower” than other rape cases, according to the United Nations Population Fund’s 2021 State of World Population review.

Campaigners in India have long fought against the clause, with the country’s top court currently hearing petitions seeking to amend it, after the Delhi High Court delivered a split verdict on the issue in 2022.

In its formal opposition to those petitions, the government’s Ministry of Home Affairs argued a man should face “penal consequences” for forcing himself on his wife. But punishing it as rape would “severely impact the conjugal relationship” and “have a far-reaching effect on the institution of marriage.”

Classifying marital rape as a crime, “can be arguably considered to be excessively harsh and therefore, disproportionate,” the government said.

The government’s written affidavit is its clearest position yet on the issue of marital rape in India.

Advocates for criminalization said the government’s arguments were not surprising, but it represents a “step back” for women already living in a deeply patriarchal society where sexual violence is rampant.

“It speaks to India’s acceptance of sexual violence in our culture,” said Ntasha Bhardwaj, a criminal justice and gender scholar. “We’ve normalized that sexual violence is a part of being a woman in our country.”

In July, Prime Minister Narendra Modi’s government overhauled the country’s 164-year-old penal code with new criminal laws, but the exemption for marital rape stayed on the books.

India has struggled for years to tackle high rates of violence against women, with a number of high-profile rape cases sparking nationwide anger and drawing international headlines.

The government’s formal opposition to the marital rape criminalization campaign comes two months after the rape and murder of a trainee doctor in the West Bengal city of Kolkata sparked mass outrage and protests in the country, with hundreds of thousands of doctors striking to demand better protection for health workers.

‘Consent is consent’

In its argument against criminalization, the Indian government said that a woman’s consent is protected in marriage, but there is “a continuing expectation, by either of the spouse, to have reasonable sexual access from the other.”

It added that, “though these expectations do not entitle the husband to coerce or force his wife into sex… the consequences of such violations within marriage differ from those outside of it.”

The government also claimed existing laws on sexual and domestic violence were sufficient to “protect consent within marriage.”

Mariam Dhawale, General Secretary of the All India Democratic Women’s Association – one of the petitioners fighting for criminalization – said consent inside and outside of marriage are “not two different things.”

“Consent is consent,” she said. “In our country, a woman is not thought of as an independent human being, as an independent citizen of the country. She is like, sort of an appendage to the husband. She’s subordinate, she’s not a separate identity as such.”

Dhawale said marital rape is a big part of the violence reported by women who seek help from her organization, but they often avoid coming out in the open with their allegations.

“Because they know that nobody will believe them, and it’s not considered as a crime,” she said.

Shifting that belief will take more than changing a law, but it’s the “first step,” said Bharadwaj.

“It’s a cultural revolution underneath,” she said. “Until and unless you make a big statement that this is not okay, the culture will never shift, because by not having that law, the culture is accepting of that violence.”

Other laws not ‘sufficient’

Women alleging rape in India have some avenues of potential legal action against their husbands, but advocates for criminalization say the current laws don’t go far enough.

Women can seek a restraining order under civil law or charges under Section 354 of India’s Penal Code, which covers sexual assault short of rape, and Section 498A, which is intended to punish cruelty toward women specifically in the context of dowry, and India’s Domestic Violence Act.

But the laws are open to interpretation and women face hurdles even when even trying to file initial police complaints, according to recent studies.

In May, a judge in Madhya Pradesh dismissed a woman’s complaint that her husband committed “unnatural sex” by citing the country’s marital rape exemption and saying in his judgement that in such instances, “consent of the wife becomes immaterial.”

AIDWA’s Dhawale said women often remain trapped in abusive households with no recourse or way out, especially if she is financially reliant on her husband.

“We don’t have any kind of safe places, shelter homes, institutions. So she has to remain in the four walls of that place. She cannot complain, because if she complains, she has no place to go… nobody will stand by her, unless and until it’s recognized as a crime.”

‘Serious disturbances in the institution of marriage’

India’s Supreme Court increased marital consent from the age of 15 to 18 in a landmark judgement in 2017.

“The Supreme Court debunked that argument,” she said.

Now, recognizing marital rape, Kothari said, “is a crucial way in which women’s equality within the marriage is going to really be bolstered.”

Similarly, Dhawale said “the sanctity of marriage, or the harmony within the home is actually getting disturbed by the man who is committing the violence, not by the woman who is asking for justice.”

A major concern of the government and of men’s rights groups is that a marital rape law will lead to women falsely accusing their husbands of rape.

Kothari said that already, it’s extremely hard for women to report sexual violence, even when the laws support them.

“All the claims of domestic violence being misused, it’s largely untrue, because it takes an immense amount of effort for women to come out and report it,” she said.

“It’s not like floodgates are going to be opened with hundreds of marital rape cases [being reported]. It’s still going to be very difficult.”