A recent judgement by the Chhattisgarh High Court has reignited a long-standing debate on marital rape in India. The ruling overturned a lower court’s decision in Jagdalpur, Bastar, reaffirming that Indian law does not recognise marital rape as a criminal offence.
Justice Narendra Kumar Vyas stated, “The offence between husband and wife cannot be made out under Section 375 IPC as per the repeal made by way of amendment and in view of repugnancy between both the sections.”
The judgement left several in utter dismay as citizens pointed out the rudimentary laws and their lack of acknowledgement of the autonomy of a woman on her body. Despite amendments and legal progress, the judiciary’s stance on this issue remains frozen in a past where marriage grants unconditional sexual access to a woman’s body to her husband.
Historical shadows: The legacy of colonial-era laws
The judgement opened the Pandora’s box of the Indian legal system, one that once criminalised homosexuality under Section 377 and continues to refuse the acknowledgement of non-consensual sex within marriage as rape.
Although Section 377 was partially invalidated, its vestiges have cropped up as the major bone of contention for married Indian women now. The provision that criminalised “unnatural sex” between homosexual engagers exempts a heterosexual man from the same within a marriage.
Justice Vyas further stated, “It is quite vivid that when everything is repealed under Section 375 of IPC then how offence under Section 377 of IPC would be attracted if it is committed between husband and wife.” The argument has tragically stated how coercion and sexual violence within the domestic sphere between married couples hold no base for getting acquitted. The ruling has prompted widespread concern over the Indian judiciary’s reluctance to challenge deep-seated patriarchal norms.
Marital rape, the dark chapter that continues to haunt Indian women
The country was shaken when news broke of a woman who succumbed to severe sexual violence at the hands of her husband. The February 10 ruling has further intensified demands for a legal framework that explicitly criminalises marital rape.
Distressingly, the case compels us to look back into India’s brutal history of women’s quest for reproductive justice when child marriage and lack of legal protection leave young girls vulnerable to abuse. Among them, the tragic death of Phulmoni, an 11-year-old girl who died after being raped by her 35-year-old husband continues to haunt everyone.
Phulmoni’s case in the late 19th century became a watershed moment for the voices against child marriage in colonial India. The details of her death exposed the horrifying realities of early marriages, where young girls were forced into sexual relationships at a tender age which their bodies couldn’t bear. The medico-legal reports from 1872 documented numerous infant deaths caused by sexual violence, highlighting the urgent need for reform.
Phulmoni’s case was not just about legal technicalities, it was a wake-up call that forced society to confront the consequences of unchecked patriarchy. Her grievous death resulted in people taking to the streets and protesting for justice for the child bride in colonial Bengal. The reluctant British government had to finally give in and intervene by initiating the Age of Consent debate in the Indian legal landscape.
The clash between tradition and reproductive justice
One of the prime reasons behind the delayed attention on Phulmoni’s case was the rising resistance against colonial rule. Against the backdrop of the mutiny of 1857 being the explosive unified resistance, any attempt to intervene in the marriage customs of all the religious communities in India became a volatile matter for the colonial administration to meddle with. Leaders like Bal Gangadhar Tilak called the British intervention of age of consent a matter of disgrace for Indian men and rendered it an attack on their masculinity. He condemned the advisory on delayed childbearing calling it an attempt to dismantle Indian traditions.
Even today, the legacy of garbhadaan persists in the form of marital rape exemption laws, where a husband’s right to sexual intercourse outweighs a wife’s right to consent. The rights of contraception, having the ability to say no to establishing any physical relationship, and security against sexual violence have become important branches of reproductive justice for women.
Tilak with others across the country like Pandit Shyam ji Varma and A Sankariah fiercely attacked the bill by calling it a proclamation against the idea of Swaraj (self-rule). Religious arguments were also raised to secure mass support. Hindu texts were referred to induce the sentiments of guarding religion. Garbhadaan, is a practice that directs that a wife must conceive within 16 days of the onset of menses. The custom reasoned purity as one of the important reasons to abide by it. Arguing against the Age of Consent bill Sankariah also stressed that “This act is virtually a missionary attack on the modesty, virtue and holy sacraments of the native females.”
Looking closely, one may also assert that garbhadaan was an old tradition to control the reproductive freedom of a woman. The rigidity of it not only barred a woman from choosing the right time for the consummation of marriage but also whether she wishes to bear a child or not. The Age of Consent Act of 1891, spearheaded by reformers like Ishwarchandra Vidyasagar, and B M Malabari among others became a landmark reform that raised the legal age for sexual intercourse for girls to 12 years of age from 10. It was one of the few reforms that attempted to balance Hindu marriage customs with the safety of young brides.
However, Phulmoni’s case left a deep cut, particularly among Bengali women, who were devastated by the public documentation of her body’s injuries during the trial to prove her age of maturity. The debate around her growing body and sexual maturity was no less than the dehumanisation of women’s bodies. The proceedings after Phulmoni’s death reduced a married woman’s body to a mere vessel for ritualistic practice that continues to haunt legal discussions in modern India.
A century later: How far have we come?
Even today, the legacy of garbhadaan persists in the form of marital rape exemption laws, where a husband’s right to sexual intercourse outweighs a wife’s right to consent. The rights of contraception, having the ability to say no to establishing any physical relationship, and security against sexual violence have become important branches of reproductive justice for women. However, one mustn’t limit it to the conversation around the terms of abortion and contraception, the founding step would be to allow a woman to express her denial and right to say no in the sanctum of marriage. As long as marital rape remains legal, reproductive autonomy remains a distant dream for many married women in India.
While India has since abolished child marriage and increased the age of consent most recently set at 18 years by the Criminal Law (Amendment) Act, 2013 many fundamental issues remain unresolved. The key question remains, “Does a married woman have autonomy over her body?“
Despite legal advancements, Indian courts have consistently upheld the marital rape exemption, protecting husbands from rape charges even when intercourse is forced or violent. While some High Courts have taken progressive stances, the Supreme Court and Parliament are yet to formulate a definitive law ruling. However, laws alone won’t change deep-rooted patriarchal beliefs. A societal shift is the need of the hour that recognises that marriage is a partnership, not a license for ownership. The judiciary and legislature must address this legal blind spot before another woman dies within the walls of her own home, trapped in the illusion of a sacred marriage.
The fight against marital rape is not just about legal definitions it is about recognising that a woman’s consent matters, even within the bounds of marriage. Until this issue is addressed, India will continue to live in the shadows of a legal system that mystifies a woman’s body as an object of ritual rather than as an entity of individual rights. Sexual autonomy must be recognised as a fundamental right, even within marriage, ensuring that no legal or social institution can strip a woman of her agency over her own body.
References:
- Whitehead, J. (1996). BODIES OF EVIDENCE, BODIES OF RULE: THE ILBERT BILL, REVIVALISM, AND AGE OF CONSENT IN COLONIAL INDIA. Sociological Bulletin, 45(1), 29–54. http://www.jstor.org/stable/23619695
- Kosambi, M. (1991). Girl-Brides and Socio-Legal Change: Age of Consent Bill (1891) Controversy. Economic and Political Weekly, 26(31/32), 1857–1868. http://www.jstor.org/stable/41498538
- https://www.ndtv.com/india-news/forced-unnatural-sex-with-wife-not-an-offence-chhattisgarh-high-court-7688324
