A recent ruling by the Chhattisgarh High Court, which held that “unnatural sex” by a husband in marriage is not an offence, heavily relies on the presumption of consent within a marital relationship. The case involved a 40-year-old man from Bastar district who had been convicted by a sessions court in connection with the death of his wife in 2017. The sessions court found that the wife, in her 30s, fell ill and subsequently died following a forced physical relationship. However, on appeal, the High Court acquitted the husband. At the core of any discussion on marriage, or any relationship, must be the principle of consent. When physical harm occurs, especially leading to a tragic death, it cannot be excused under the presumption of marital consent. The issue at hand is not about the nature of the sexual act but the absence of consent and the use of force. The High Court relied on Exception II of Section 375 of the Indian Penal Code, which does not recognise marital rape as an offence unless the wife is under 15 years old — the Supreme Court of India raised this age to 18 in the Independent Thought vs Union of India & Anr. case (2017) — to justify acquitting the husband. This overturned the sessions court’s verdict, which had sentenced him to 10 years of rigorous imprisonment.
The ruling once again brings attention to the ambiguous legal terrain surrounding sexual violence in marriage. In October 2024, the Supreme Court deferred hearings on pleas to criminalise marital rape. In previous judgments, it had indicated that the responsibility lies with the legislature to introduce laws on this issue. The Union government has also stated that criminalising marital rape could “undermine the institution of marriage”. India remains one of the few countries where marital rape is not a criminal offence. Yet, data from the National Family Health Survey 5 (2019-2021) reveal that 32% of ever-married women aged 18 to 49 years in India have experienced physical, sexual, or emotional spousal violence, with only a small percentage seeking help. This stark reality should serve as a wake-up call for lawmakers, law enforcement, and society at large to take urgent action in ensuring women can live free from violence and fear. While constitutional safeguards on life, liberty, equality, and dignity exist, and laws are in place to protect women, true change requires a shift in societal attitudes and mindsets. No relationship, marriage included, should provide immunity for violence.
Published – February 17, 2025 12:15 am IST
