Indian courts cannot decide whether marital rape should be legalized. Right now.


Indian rape protests
University of India students protest against rape culture after the gang rape of a girl in New Delhi, Kolkata, India, on January 29, 2022.

Vicasdas/AP


new delhi — The Delhi High Court, which has frustrated activists trying to make marital rape a crime in India, failed to reach a verdict on Wednesday after two judges hearing the case disagreed.

One of the two judges, Judge Rajiv Shakdher, wanted to repeal an exception to India’s rape law that states that a husband cannot be charged with raping his wife. He argued that it violated the constitutional guarantees of equality, liberty and liberty.

Another judge, Judge Hari Shankar, disagreed.

“It’s a big disappointment,” Mariam Dawale, secretary-general of the All-India Democratic Women’s Association, told CBS News.

Section 375 of the Indian Criminal Code, which defines rape, contains a clause that states, “It is not rape for a man to have sexual intercourse with his wife under the age of 15.”

Women’s rights advocates in India have been campaigning against the exception for years, arguing that forced sex should be considered rape without exception.

Those who brought the case to the Delhi court told CBS News on Wednesday that they plan to file the case with the Supreme Court.

Dhawale, one of the activists who filed a petition against the law, said, “Under this law, victims cannot appeal to justice if they are violently sexually assaulted by their husbands.”


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Some groups have opposed legal attempts to change the law, arguing that consent to marriage is always tacit and that removing the exception would lead to an abuse of the rape law.

Delhi courts have held dozens of hearings on the case since 2015, when the petition was first filed.

Marital rape or spousal rape is a crime in more than 100 countries, including 50 in the United States. In 2017, the Indian government argued that making marital rape a crime could have a “destabilizing effect on the marriage system” and could be an “easy tool to harass husbands”.

Earlier this year, the federal government said it had begun consultations with states on the matter, giving it more time to clarify its position.

On Wednesday, the government said it was taking a “holistic view” on the matter after no action was taken by the Delhi High Court.

Dhawale accused the government of using “delay tactics”.

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