This was the situation in several villages of Bali block in Pali district of Rajasthan inhabited by the Garasia tribal community about a decade back. Women were deeply troubled by the increasing drift towards alcoholism which was partly triggered by the proliferation of illegal selling joints in remote villages in addition to the extension of legally sanctioned liquor selling shops or thekas.

In contrast, however, one positive development had also emerged. In recent times an increasing number of self-help groups had been organized in many of these villages, particularly involving women of the Garasia tribal community. While the more obvious aim was to promote savings and economic security, at the meetings of these groups the women also discussed their other serious problems and concerns and whenever they discussed serious problems including violence against women and economic crisis situations, the growing alcoholism emerged as an important cause of these problems in these discussions.

Can we do something to check this ever-increasing problem, these women asked each other in their group discussions, and in the course of these deliberations, some kind of a plan began to emerge.

The women increasingly felt that only small village-level efforts will not be adequate, a bigger impact must be created by planning something that will reveal the depth of their feelings regarding the increasing menace.

After considering many suggestions the women decided that they will get together to organize a very long march covering most of the area over which their villages are located.

To symbolize their unity and their determination for a joint effort, they decided to prepare a pink dress that they would all be wearing in the course of this march. It was also decided that other social reform issues such as reducing child marriages and preventing domestic violence will also be raised during the march to impart a wider social reform dimension to this march, although the core issue will remain that of checking the increasing alcoholism.

This decision of women from weaker section households was very courageous as the legal and illegal sellers of liquor were known to be among the most powerful and violent persons of this region.

Starting early in morning this march of women covered a distance of nearly 25 km and ended at night. As many as about 2000 women participated in this long march.

On the way they smashed up several illegal liquor making bhattis (joints) and illegal selling units. They stopped in front of legal liquor vends and shouted slogans against opening liquor shops even in remote villages.

This march made a big impact on people. The courage of the women in confronting the powerful liquor lobby and mafia was widely appreciated. The increasing drift towards alcoholism could be checked. In addition, there was a reduction in domestic violence.

There was also a lot of follow-up- action in the form of sending representations to the authorities for shutting down illegal liquor selling joints and also making community level efforts for this. There was a continuing dialogue on the highly adverse impacts of increasing alcoholism on the community. All this helped to check the increasing spread of alcoholism.

After the peak of this activity had passed, these women and their groups continued their efforts to check the spread of alcoholism at a smaller level in later years. The result has been that the earlier trend of fast drift towards alcoholism could be checked on a more stable and permanent basis. A recent visit to these villages and conversations with women here revealed that the problem has reduced compared to the worst period seen before the women’s anti-liquor march was undertaken.

Meanwhile these women and their groups have also continued to be active in taking up a range of other important social issues. They continue to remember the march as a very inspirational part of their efforts, one indication of which is that group members have permanently adopted the pink colour dress prepared at the time of the march as their regular dress by which the group members are recognized even now.

The writer is Honorary Convener, Campaign to Save Earth Now. His recent books include Protecting Earth for Children, A Day in 2071 and Man over Machine.   

The post Women in remote villages mobilise to check fast spread of alcoholism appeared first on SabrangIndia.

Their testimonies have been crucial in exposing state complicity, resisting the erasure of history, and demanding accountability. Yet, their pursuit of justice has been met with intimidation, legal obstruction, and, in some cases, criminalisation. Across these three instances, a grim pattern emerges: the deliberate targeting of women, the systemic failure of institutions meant to protect them, and the extraordinary resilience with which they have fought back.

1984 anti-Sikh pogrom: Survivors bore became the voice of the battle for justice

The anti-Sikh riots of 1984 resulted in the targeted killings of close to 3,000 Sikh men in Delhi alone though the all-India figures are higher. The targeted violence left behind a generation of widows who not only survived brutal gendered violence at the time, but also bore the burden of documenting the atrocities and seeking justice for over three decades. These women, who were often left to fend for themselves by a cruel state apparatus, after witnessing the murders of their male relatives, rose out of the tragedy to become among the strongest voices to reclaim memory and assert the cries for justice. It was their collective voice that ensured that the history of the massacres was not erased. Their testimonies and persistent legal battles formed the backbone of efforts to hold the perpetrators accountable.

The Sikh women who survived the 1984 riots had to overcome the dual trauma of sexual violence and the loss of their families. Many were raped in front of their own children, while others were kidnapped and tortured for days. Their homes were looted and burned, leaving them homeless and destitute. The legal system and government, rather than offering justice, attempted to silence them through intimidation and bureaucratic neglect. Yet, these women refused to let the world forget what had happened.

Women like Nirpreet Kaur, who was 16 when she witnessed her father being burned alive, dedicated their lives to collecting evidence, documenting survivor testimonies, and ensuring that cases against the perpetrators remained alive. Kaur, despite facing police torture, years of imprisonment under false charges, and the loss of two husbands, continued to fight for justice. She meticulously gathered witness statements, encouraged other widows to testify, and resisted repeated offers of bribes and compensation meant to buy her silence.

Similarly, many widows who had lost their husbands and sons stood as the primary eyewitnesses in court. Their testimonies were critical in exposing the involvement of political leaders who had orchestrated the violence. Women who had lost everything, such as Pappi Kaur, who saw 11 of her male relatives burned alive, and Bhaagi Kaur, who was left to raise her children in abject poverty, took the stand despite threats and intimidation. Their courage ensured that the narratives of rape, murder, and destruction remained central to the legal battle.

The state machinery worked relentlessly to suppress the voices of Sikh women. Many were offered financial compensation to withdraw their cases, while others faced direct threats to their lives and families. Witness protection was virtually non-existent, with police officers themselves leaking information to the accused. In one instance, police allegedly warned a witness that her children would be killed if she continued to testify.

Despite these threats, Sikh women continued to push for legal accountability. They filed affidavits, attended court hearings, and worked with human rights lawyers to challenge the impunity granted to perpetrators. Their efforts led to the reopening of cases, the formation of commissions, and, after decades of struggle, the eventual conviction of senior politicians such as Sajjan Kumar in 2018.

The importance of women’s testimonies in the Sikh pogrom

The testimonies of Sikh women were instrumental in revealing the premeditated nature of the violence. Unlike the state’s claim that the riots were spontaneous, these women detailed how mobs were armed with chemicals, iron rods, and torches; how police officers either stood by or actively participated; and how political leaders directed the killings. Their statements also underscored the targeted sexual violence inflicted on Sikh women as a means of communal humiliation.

At the time, after the mob set Darshan Kaur’s husband ablaze, she gathered her three children, the youngest just 15 days old, and ran. In the frenzy, the baby slipped from 19-year-old Darshan’s hands. But there was no time to stop. For the next three days, she and the remaining two children ran from the police station to gurudwara searching for a safe place. Yet she has not given up and remains the haunting yet strong figure for justice for the survivors of 1984.

The fight for justice was long and arduous. It took 26 years for the trial of Sajjan Kumar to even begin, and even then, convictions came only after relentless pressure from survivors like Nirpreet Kaur. Many Sikh widows, facing extreme poverty, had to make painful choices—some accepted financial compensation in lieu of pursuing legal battles, while others withdrew their cases due to fear. Yet, those who persisted forced the legal system to reckon with the atrocities committed in 1984.

Some women were denied even dignified rehabilitation. There is Satpal Kaur, 13 years old and the eldest of four girl survivors at the time. Suddenly from living a normal middle-class life, on November 1, 1984 everything changed. Four members of their family, their father, mother, brother and uncle, were killed and only the four sisters were left alive. As the eldest, Satpal Kaur, was 13 and the youngest girl only four years old at the time, and finally it was Advocate HS Phoolka who helped the legal battle for custody of the girls that was given to the grandfather. Another story about 21 widows, all from one family, who lived in the Sagarpur area of West Delhi near the Delhi Cantonment. On November 1, 1984 a resident of the area suggested that the male members of the family should all take shelter in a tube well room located near their house. The men were locked up in the room ostensibly to save their lives but later the mob was informed of their whereabouts. They came and set fire to the room, roasting the men alive. The youngest of these 21 widows, Manjit Kaur, was just 20 years old and had only been married for two years when tragedy struck. She had no children and after this traumatic incident, did not marry again. For the two and a half decades thereafter, she tried to get a government job to no avail.

The Sikh women who survived the 1984 riots not only bore the weight of personal tragedy but also became the torchbearers of justice. Their documentation of crimes, unwavering testimonies, and refusal to be silenced ensured that the massacre was not forgotten. Though justice came late and in fragments, their fight set a precedent for future struggles against state-sponsored violence. Their resilience remains a powerful testament to the strength of survivors who refuse to let history be rewritten by those in power.

Gujarat 2002: Testifying against unimaginable horror

The Gujarat riots of 2002 marked one of the darkest chapters of communal violence in India. Amidst the widespread bloodshed, women not only bore the brunt of gendered violence but also led the struggle for accountability, documenting atrocities and seeking justice. These women, many of them victims themselves, stood against systemic apathy and intimidation to ensure that the truth was recorded and the perpetrators were held accountable. Their determination played a crucial role in exposing the extent of sexual violence during the riots, despite efforts to erase or suppress these accounts from official records. In one of its shining moments the National Human Rights Commission (NHRC) took suo moto action in Gujarat 2002. The seminal report followed by path-breaking interventions in the Supreme Court of India ensured, in some measure, that other institutions responded with some seriousness.

The gendered violence during the Gujarat riots was unparalleled in its brutality. Women were raped, mutilated, and killed, often in broad daylight; their bodies used as battlegrounds for communal hatred. The systemic nature of these crimes was evident in the way women were specifically targeted, often in public settings, as a means of humiliating the entire community. Survivors, however, refused to let these crimes be erased from history. According to officially admitted records, documented by Citizens for Justice and Peace, 97 women eye-witnesses played a critical role in criminal trials related to the massacres. Despite immense pressure, intimidation, and threats, they deposed before courts, describing the horrifying acts of sexual violence and targeted attacks in explicit detail. State Intelligence Bureau figures admitted to 99 cases of gendered violence though citizen’s efforts put the figure at twice the number.

In cases such as the Naroda Patiya massacre, where over 110 people were killed, and the Gulberg Society massacre, where at least 69 lives were lost, women testified about the gruesome acts of violence they witnessed or endured. These testimonies included accounts of gang rape, public stripping, and the killing of pregnant women and infants. Women described how mobs used iron rods, swords, and petrol bombs to attack them, often displaying a sadistic violent brutality in each of the attacks. The testimonies highlighted the premeditated nature of the mob violence as also the utter complicity of the state, from local police to other authorities.

The struggle to document sexual violence was particularly difficult, as official records often downplayed or omitted these accounts. Women survivors and activists persisted, ensuring that evidence of rape and brutalisation was included in legal proceedings and public records. Forensic reports were often manipulated or withheld, and in many cases, there was an absence of medical documentation due to the fear instilled in victims and their families. Despite these hurdles, women continued to speak out, determined to create a historical record that could not be erased.

Women who stepped forward to testify faced relentless harassment. Many were forced to relocate multiple times due to threats from the accused and their supporters. In some cases, male relatives were pressured to withdraw cases or dissuade women from testifying. Police officers and local authorities often refused to file FIRs or conducted deliberately flawed investigations, further victimising survivors. Women were denied legal representation, forced to relive their trauma in hostile courtrooms, and subjected to humiliating questioning by defence lawyers who sought to discredit their accounts.

Among those who played a pivotal role in this documentation were women like Bilkis Bano and Zakia Jafri, who recently passed away. As survivors, they turned their personal tragedies into a relentless pursuit of justice, ensuring that accounts of gendered violence were not buried under political pressure. Bilkis Bano’s testimony became instrumental in exposing the extent of sexual violence during the riots, as she recounted how she was gang-raped while her family members, including her infant daughter, were murdered. Zakia Jafri, despite losing her husband, former Congress MP Ehsan Jafri, in the Gulberg Society massacre, fought for years to hold state officials accountable for their complicity in the violence. Their struggles, alongside those of many other unnamed women, challenged state complicity and legal apathy, fighting in courts for years to establish the truth. CJP was among the leading groups that persisted over two decades with legal aid for survivors like Zakia Jafri, Rupa Mody, Saira Sandhi (Gulberg case), Bashirabi and others (Sardarpura case) and Farida bano, Shakila Bano and others in the Naroda Patiya case.

Despite multiple attempts to derail these cases, the persistence of women survivors led to rare convictions in some instances. The Supreme Court eventually intervened to move key cases, including the Best Bakery case, outside Gujarat due to concerns over bias and threats to witnesses. This was a direct result of the relentless efforts of women who refused to back down despite knowing the risks involved.

The importance of women’s testimonies in the Gujarat riots

The documentation of violence by women played a crucial role in countering the official narrative that sought to dismiss or minimise the scale of gendered atrocities. In many cases, the state machinery attempted to frame the violence as spontaneous riots rather than a coordinated attack. Women’s testimonies dismantled this argument by providing detailed accounts of how mobs were armed, how attacks were systematically carried out, and how law enforcement agencies either stood by or actively participated in the violence.

The legal battle that followed the riots was long and fraught with challenges. The initial investigations were deliberately botched, with crucial evidence being destroyed or tampered with. Public prosecutors appointed by the state were often affiliated with the ruling party and acted in ways that favoured the accused. Women survivors, however, continued to file petitions, demand re-investigations, and push for special hearings. Their relentless legal advocacy forced the courts to acknowledge the specific targeting of women during the riots and set legal precedents for future cases of communal violence.

One of the most significant impacts of women’s documentation efforts was the recognition of sexual violence as a weapon of communal conflict. Their testimonies became part of a larger movement that called for reforms in how gender-based violence was prosecuted in mass crimes. Women’s organisations, both within and outside Gujarat, used these testimonies to demand accountability at national and international levels, submitting reports to bodies such as the United Nations and the Supreme Court.

The Gujarat riots of 2002 showcased the brutalisation of women, but they also highlighted their resilience. In the face of unspeakable horrors, women survivors fought relentlessly, not just for their own justice but for a historical record that would not allow their suffering to be forgotten. Their testimonies and legal battles remain a testament to the power of resistance, ensuring that gendered violence in communal conflicts does not fade into obscurity. The documentation of these crimes by women survivors forced India’s legal system to confront the role of sexual violence in communal conflicts and laid the groundwork for future legal battles. Their fight continues to inspire generations to confront hate with courage and demand accountability, even against the most formidable adversaries.

Delhi 2020: The weaponisation of the state against women

The communal violence that unfolded in northeast Delhi between February 23 and 26, 2020, was not a spontaneous riot but an orchestrated attack. The violence, which resulted in the deaths of 53 people—40 of them Muslim—was a brutal response to the anti-CAA protests that had mobilised thousands across the country, led significantly by Muslim women. While the state and the media sought to rewrite the narrative, blaming protestors for the violence, women who had witnessed and experienced the attacks fought to document the truth and seek justice. Unlike past instances of communal violence, where survivors slowly found avenues for legal battles, the women of the Delhi riots faced an unprecedented challenge: criminalisation, incarceration, and continued suppression by the state.

The anti-CAA protests, particularly the Shaheen Bagh movement, symbolised peaceful resistance led by Muslim women. However, these women soon became targets. In Jaffrabad, one of the protest sites, women were on the frontlines, protesting discriminatory citizenship laws when mobs, emboldened by political leaders’ inflammatory speeches, launched targeted attacks. Homes and shops were torched, mosques vandalised, and people lynched. Women who led protests, like Ishrat Jahan, Devangana Kalita, Natasha Narwal, Safoora Zargar, and Gulfisha Fatima were arrested under draconian laws, accused of conspiring to incite the violence they had, in reality, been victims of.

Unlike previous instances of communal violence, where women fought prolonged legal battles for justice, in Delhi, they were pre-emptively branded as conspirators and jailed. Gulfisha Fatima, an MBA graduate and grassroots activist, was arrested under FIR 48, initially granted bail, only to be re-arrested under the Unlawful Activities Prevention Act (UAPA), ensuring her prolonged incarceration. To date, she remains in jail, a stark reminder of how the state weaponised the legal system against Muslim women who dared to resist. Gulfisha remains under arrest as an undertrial, without bail to date, five years later.

Similarly, Safoora Zargar, arrested while pregnant, was accused of being a key conspirator despite a lack of evidence. Ishrat Jahan, a former municipal councillor, was denied bail for years, and when granted, it was seen as an exception rather than a norm. Devangana Kalita and Natasha Narwal, founding members of Pinjra Tod, were arrested and re-arrested on multiple charges, illustrating the state’s relentless pursuit of women activists.

Even those who weren’t arrested faced systemic suppression. Police dismissed the testimonies of women who had lost family members and refused to investigate cases that implicated Hindutva extremists. In courts, victims found their cases delayed indefinitely, while those accused of instigating the riots walked free. The judiciary, instead of upholding justice, repeatedly sided with the state’s narrative, making it nearly impossible for Muslim women to seek legal redress.

The importance of women’s testimonies in countering false narratives

The role of women in documenting the 2020 Delhi riots goes beyond legal battles—it is about preserving the truth against deliberate erasure. The mainstream narrative continues to blame Muslim activists for the violence, while the actual instigators remain shielded by the state. The testimonies, photographs, and first-hand accounts collected by women protestors and survivors challenge this state-sponsored narrative and ensure that the history of these attacks is not rewritten.

In contrast to past instances of communal violence, where survivors eventually found some measure of justice after decades of struggle, the women of the Delhi riots face an ongoing battle where justice remains entirely out of reach. With Gulfisha Fatima still in jail after four years and many others continuing to fight baseless charges, their struggle is far from over. Their resistance, however, ensures that their stories remain alive, refusing to let the truth be buried under propaganda and state repression.

The women of the 2020 Delhi riots fought not just against targeted violence but against a state determined to criminalise their very existence. Their documentation of the attacks, their refusal to remain silent, and their continued struggle for justice in the face of legal persecution exemplify resilience. In a system that punishes those who seek accountability, their fight is one for survival, memory, and truth. Their resistance stands as a testament to the unyielding spirit of women who refuse to let history be rewritten by those in power.

Women and their unyielding fight for truth

Women who have fought for justice in the aftermath of communal violence in India have done so against overwhelming odds. They have defied a state machinery that actively seeks to erase their suffering, a legal system designed to delay and deny, and a society that too often treats them as collateral damage. Their fight has not only been about personal justice but about exposing the larger structures of power that enable such violence.

Despite decades of struggle, justice remains a distant dream. In Gujarat, where a handful of convictions took place, the state machinery ensured that most perpetrators walked free. In 1984, justice came too late for many survivors, with key political figures being convicted only after decades of relentless legal battles. And in Delhi, justice is yet to arrive—Muslim women who dared to protest against discriminatory laws remain imprisoned while the instigators of violence roam free.

The stories of these women force us to confront an uncomfortable truth: the state is not merely a bystander in communal violence but an active participant, shielding perpetrators and punishing those who seek accountability. Their resilience in the face of such repression is a testament to their courage. But their continued struggle also serves as an indictment of a system that has failed them at every level. This International Women’s Day, their fight must not only be remembered but actively supported—for justice, for truth, and for the right to resist oppression without fear.

Related:

This women’s day CJP celebrates all women in resistance

The women of CJP: Resilient and resolute in their mission to advocate for the rights of all and counter prejudice

Oh, what a year to be a woman! IWD 2023: CJP lists some advocates who paved the way for women’s rights

Wounds still linger

Remembering 1984

The post Surviving Communal Wrath: Women who have defied the silence, demanded accountability from the state appeared first on SabrangIndia.

The imam, a religious reformer and an activist, was ambushed by two masked men in a pick-up truck while visiting the southern city of Gqeberha on Saturday. While police have yet to establish the motive for the hate crime, political parties and LGBTQ+ organizations say Hendricks was targeted because he started a mosque in Cape Town for gay Muslims and called for members of the LGBTQ+ community to be welcomed into Islam. And was not deterred by the many death threats he had received over several years.

IMSD stands by the dictum: “No God, gods, goddesses, prophets or saints may be invoked to justify the killing and/or terrorising of fellow human beings”.

A statement issued by the departed Imam’s colleagues at the Center for Contemporary Islam at University of Cape Town said: “His theology was a liberation theology: God is a God of radical love and justice for all human beings. The safe space created by his work brought relief beyond the community of queer Muslims, extending to refugees, people who were homeless, those marginalised without community and belonging, for whom he provided a space of inclusion”.

Deploring the fact some Muslims were condoning the imam’s assassination on social media, the statement bemoaned that “the compounded horror of such violence and brutality has brought into sharp focus the intense homophobia permeating the Muslim community”.

IMSD notes with concern that this intense homophobia permeating the Muslim community is sadly as true of South Africa as it is of the global Muslim community, India included.

We recall our statement issued in March 2023 strongly condemning the concerted effort by the Muslim rightwing in Kerala — including leaders of the Jamaat-e-Islami, the Indian Union Muslim League (IUML), and some Muslim-run websites — to ridicule, vilify, denigrate and demonise Muslims who are part of the LGBTQIA+ community.

IMSD stands in solidarity with the South African colleagues of the departed Imam and fully supports the call by the US-based Muslims for Progressive Values (MPV) on all Muslims worldwide, “to build a culture of tolerance and curiosity for various interpretations of Islam”.

We call on Indian Muslims in particular, who as a community have been relentless targets of hate politics and hate crimes in today’s ‘new India’, to deplore and eschew any hatred or violence in Islam’s name. Signatories:

1. Anand Patwardhan, IMSD, Documentary Film-maker, Mumbai
2. Arshad Alam, IMSD Co-convenor, Columnist, Delhi
3. Askari Zaidi, IMSD, Senior Journalist, Delhi
4. Feroze Mithiborwala, IMSD Co-Convener, Mumbai
5. Ghulam Rasool Dehlvi, an Alim and Fazil (a classical Islamic scholar), having graduated from a leading Islamic seminary of India, Jamia Amjadia Rizvia (Mau, U.P.)
6. Hasan Ibrahim Pasha, IMSD, Writer, Allahabad
7. Javed Anand, IMSD Co-convener, CJP, Mumbai
8. Kasim Sait, Businessman, Social Activist, Chennai
9. Lara Jesani, Advocate, PUCL, Mumbai
10. Madhu Prasad, IMSD, Social Activist, Delhi
11. Mohammad Imran, PIO, USA
12. Muniza Khan, Citizens for Justice and Peace, Varanasi
13. Qaisar Sultana, Home Maker, Allahabad
14. Qutub Kidwai, IMSD, Islamic Feminist/ Peace Activist, Secretary General AMAN International, Mumbai
15. (Prof) Mohammad Sajjad, Historian, AMU, Aligarh
16. (Dr) Shahnawaz Alam, UP
17. Shamsul Islam, Author, Activist, Delhi
18. Sultan Shahin, Editor-in Chief, New Age Islam, Delhi
19. Teesta Setalvad, IMSD, Secretary CJP, Mumbai
20. Zakia Soman, Co-Convener, Bhartiya Muslim Mahila Andolan
21. Zeenat Shaukat Ali, Islamic Scholar, Director general, Wisdom Foundation, IMSD, Mumbai

Related:

Progressive Muslims condemn the assassination in South Africa of the world’s first gay Imam

The post IMSD condemns the assassination of the world’s first openly gay Imam appeared first on SabrangIndia.

I. Brief history of rape law

Justice Rajiv Shakdher begins his judgment with a historical overview of rape law, emphasising the evolution of the concept of marital rape. He notes that the origins of the Marital Rape Exception (MRE) can be traced back to the doctrine of coverture, which held that a married woman’s legal rights were subsumed by her husband’s. This historical context is crucial for understanding the archaic nature of the MRE, which Justice Shakdher describes as being rooted in a time when women were treated as mere property of their husbands.

II. Separation of powers and judicial restraint

Justice Shakdher addresses the argument that the judiciary should not interfere with legislative decisions, particularly in matters of criminal law. The counsel for one of the intervenors—Men’s Welfare Trust— had argued that if the court were to exercise the powers under Article 226, and strike down MRE, it would have carried out a legislative act thus blurring the Doctrine of Separation of Powers.

Justice Shakdher first establishes via rich case law that in India, the separation of powers is not as rigid as it is in other jurisdictions. Having established it as such, he essentially states that the doctrine does not preclude the judiciary from examining the constitutionality of laws to legislate but to ensure that laws are in compliance with the Constitution (Para 123).

His reasoning behind the court’s power to address the constitutionality of the MRE—against the argument that the Court cannot legislate—is simple and to the point. He states that Article 13 empowers courts to declare void any laws that contravene Part III (Fundamental Rights). Therefore, according to Justice Shakdher, the court’s power includes, as in this case, the authority to deem a law or provision unconstitutional. He states as follows: “The submission that the issues involved concern a policy decision which, in turn, requires wide ranging consultations with members of the public and domain experts misses, if I may say so, the wood for the trees inasmuch as it fails to accept that what the court has before it is a legal issue i.e., whether or not the impugned provisions (which includes MRE) violate a married woman’s fundamental rights conferred under the Constitution.” (Para 125)

Justice Shakdher rejects the notion that judicial restraint should prevent the court from examining the constitutionality of the MRE. To let it be handled by legislature which actually has the means to conduct consultations with a diverse set of stakeholders, it is not an economic/policy issue. According to him, it is a legal issue with alleged violations of fundamental rights and “Side-stepping such issues would be akin to the court seeking “an alibi” for refusing to decide a legal controversy, which it is obliged in law to decide.” (Para 127)

III. Ambit of section 375 of the IPC-Article 14 Test

Justice Shakdher analyses Section 375 of the Indian Penal Code (IPC), which defines rape. He emphasises that rape’s unlawfulness hinges on whether sexual acts were consensual. Section 375’s Clauses (a)-(d) ignore marital status. They apply to all forced sexual acts, except when the offender is a husband. Similarly, married women cannot file criminal charges against their husbands under these clauses. (Para 135.2)

Justice Shakdher identifies consent as central to Section 375. He then examines the Marital Rape Exception (MRE), which treats married and unmarried individuals differently. He concludes MRE violates Article 14 of the Constitution. Why? He applies the Article 14 test: a law’s “intelligible differentia” (clear distinction) must rationally connect to its object. MRE’s marital distinction, he argues, has no rational nexus to Section 375’s goal of criminalizing non-consensual acts. (Para 137.1)

Instead of treating MRE and Section 375 as separate, the judgement treats MRE against Section 375’s core objective. He finds MRE fails this test, as it exempts husbands from liability without justification.

Justice Shakdher’s reasoning behind striking down the Marital Rape Exception (MRE) is compelling not just for its legal soundness but also for the sheer weight of real-life examples he brings forth. His judgement does not merely counter Justice Hari Shankar’s argument that marriage creates a sexual expectation—it systematically dismantles the sexual expectation argument by highlighting multiple instances where a married woman is denied agency over her body, even in situations where fundamental rights to dignity and health should prevail.

One of the most striking aspects of his judgment is his reference to instances where a married woman’s lack of consent is disregarded: when her husband has a communicable disease, when she is unwell, or when the husband is involved in gang rape with co-accused. These examples puncture holes in the argument that marriage inherently implies perpetual consent. As he illustrates:

• Forced sex outside marriage is recognised as “real rape,” yet the same act within marriage is deemed something else.
• A chaste woman or a young girl is more likely to be considered a victim, but a married woman is not.
• A prior sexual relationship is regarded as a reasonable defense on the assumption of consent, yet a married woman’s consent is not even put to test.
• A sex worker has the legal right to refuse sex, but a married woman does not.
• In cases of gang rape where the husband is involved, the co-accused faces the full force of the law, while the husband is exempt merely due to his marital status.
• A married woman has no legal protection even when her husband has a communicable disease or when she herself is unwell. (Para 137.1)

However, Justice Shakdher’s judgement does not stop with disproving the idea of absolute and perpetual sexual expectation in marriage. It goes a step further, challenging the very notion that the State has a legitimate interest in protecting a marriage that functions as a site of tyranny. His judgment is uncompromising in its stance that when husbands are raping their wives, the law cannot seek to preserve such a structure. In his words:

“When marriage is tyranny, the State cannot have a plausible legitimate interest in saving it.” (Para 137.1)

This statement alone renders MRE indefensible under Article 14. The classification between married and unmarried women is not just arbitrary but actively unjust. He applies the test of reasonableness from Slattery v. Naylor (1888) and Kruse v. Johnson (1898), concluding that MRE is manifestly unjust and oppressive. He states:

“If one were to apply the aforesaid test the only conclusion that can be drawn is that the classification between married and unmarried couples in the context of forced sex is not just unequal in its operation but is also manifestly unjust. MRE, in my opinion, is also oppressive as it can find no justification in the minds of reasonable men, for lawmakers could never have intended to make such a law.” (Para 138)

Justice Shakdher critiques the over-reliance on the test of classification, arguing that courts must go beyond rigid categorisation and examine how a law actually operates on the ground. The real effect and impact on those subjected to it must take precedence over remote or indirect consequences, his judgement states, relying on Anuj Garg & Ors. v. Hotel Association of India & Ors.^[2] The Doctrine of Classification must ultimately serve the core principle of equality, not override it. (Para 140)

Applying this to MRE, he highlights its immediate and glaring impact: an unmarried rape survivor can seek protection under various IPC and CrPC provisions, but a married woman is denied the same safeguards. She cannot benefit from identity protection (Section 228A IPC), medical examination provisions (Sections 53A, 164A CrPC), gender-sensitive trial procedures (Sections 26, 154, 161, 309 CrPC), in-camera trials (Section 327 CrPC), or mandatory medical aid (Section 357C CrPC).

He states as follows while declaring the MRE to be violative of Article 14 of the Constitution:

“The fact that the law does not operate even-handedly for women who are similarly circumstanced i.e. subjected to forced sex is writ large and no amount of legal callisthenics will sustain MRE. Therefore, in my view, MRE is bad in law as it violates Article 14 of the Constitution.” (Para 141.1)

IV. On other arguments

Justice Shakdher dismantles the argument that MRE is justified because other IPC provisions are also relationship-based. He clarifies that while some laws exempt spouses from prosecution (e.g., Sections 136, 212, 216, 216A IPC), these apply only to harboring offenders, not committing offenses against a spouse. MRE, however, shields the husband precisely because he is the perpetrator, making the comparison fundamentally flawed.

He also rejects the claim that married women have alternative legal remedies under IPC and other statutes. Section 498A (cruelty), Section 304B (dowry death), and Section 306 (abetment of suicide) do not address rape—they deal with specific forms of abuse. Even the Domestic Violence Act (D.V. Act), while recognizing sexual abuse, does not criminalize marital rape. Instead, it provides civil remedies like protection orders and financial relief but denies the survivor the ability to prosecute her rapist husband under Section 376(1) IPC.

The result? The judgement points out to a glaring legal loophole where a wife can report every other crime committed by her husband except rape. This exposes the hollowness of the claim that existing laws protect married women against sexual violence.

V. MRE violates Article 21 of the Constitution

Justice Shakdher asserts that the MRE violates Article 21 of the Constitution, which guarantees the right to life and personal liberty. He argues that the MRE undermines a woman’s right to bodily integrity and autonomy by immunizing husbands from prosecution for non-consensual sexual acts within marriage.

Justice Shakdher states, “The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty which encompasses her right to protect her physical and mental being. Non-consensual sex destroys this core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate. While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred.”  (Para 163)

Therefore, denying a married woman the right to legally recognize rape by her husband strikes at the core of her right to life and liberty under Article 21.

VI. MRE Violates Articles 15 and 19(1)(a) of the Constitution

Justice Shakdher also examines the MRE’s impact on Articles 15 and 19(1)(a) of the Constitution, which guarantee protection from discrimination and the right to freedom of expression, respectively. He argues that the MRE perpetuates gender discrimination by treating married women differently from unmarried women.

Justice Shakdher states, “The guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy. The fact that this right is also secured by Article 21 (which is available to non-citizens as well) lends strength to the right conferred on a married woman to express herself and not be subjected to non-consensual sexual intercourse by her husband.”  (Para 166.1)

VII. Presumption of constitutionality of pre-constitutional statutes

The judgment addresses the presumption of constitutionality concerning pre-constitutional laws like the IPC, asserting that such laws are not immune from constitutional scrutiny. While Article 372 saves pre-constitutional laws, it does not shield them from being tested against fundamental rights under Articles 14, 15, 19(1) (a) and 21.

The judgment acknowledges the argument from Navtej Singh Johar vs Union of India and Joseph Shine that pre-constitutional statutes do not enjoy an inherent presumption of constitutionality.[3]

Further, the judgement emphasizes the evolving nature of constitutional interpretation. Relying on Anuj Garg, it holds that laws, even if constitutional at inception, can become unconstitutional due to societal changes. Thus, outdated legal provisions must be reassessed to align with contemporary constitutional values. (Para 172.1)

VIII. Foreign decisions, international covenants, and Indian parliamentary reports

The judgment pushes back against objections to relying on foreign decisions and international covenants, pointing out that legal systems worldwide have already moved past the idea that marriage grants immunity from rape. Cases like CR v. UK (ECHR) and People v. Liberta (New York Court of Appeals) make it clear that the marital rape exemption has no place in modern law. Courts in Nepal and the Philippines have also ruled that forced sex in marriage is still rape, reinforcing that consent does not become irrelevant after marriage.

It recognises the importance of international conventions like CEDAW and the Beijing Declaration emphasize gender equality and protection against sexual violence, making it clear that MRE goes against India’s global commitments. Courts in India have previously used international law to interpret domestic statutes, and the judgment follows that precedent.

As for parliamentary reports, multiple committees—including the Justice Verma Committee—have called for scrapping MRE. The fact that the legislature hasn’t acted doesn’t mean courts can’t step in. Navtej Singh Johar made it clear that legislative inaction is a “neutral fact” and doesn’t block judicial review.  The judgement recognises this and follows the same principle.

IX. On miscellaneous issues

Conjugal expectations and marital rights

The judgment critiques the notion of “conjugal expectation,” clarifying that while legitimate during a harmonious marriage, it cannot equate to an unfettered right to non-consensual sex. It references Section 9 of the Hindu Marriage Act (HMA) and Order XXI Rule 32 of the Civil Procedure Code (CPC), noting that even restitution decrees for conjugal rights cannot mandate consummation. The law must respect marital consent, not impose obligations. (Para 146)

Marriage as an institution vs. individual rights

The judgment rejects the argument that excluding marital rape from Section 375 IPC protects the institution of marriage. It emphasizes that marriage is a union of individuals rooted in mutuality, respect, and autonomy. When these principles are violated, the institution collapses. The state’s role is limited to recognizing/dissolving marriages via laws like the HMA, Domestic Violence Act (D.V. Act), and IPC provisions (Sections 375–376B), not shielding perpetrators of sexual violence (Para 148.3).

Labeling marital rape as “rape”

The judgment argues that sexual assault by a husband falling under Section 375 must be labeled as rape to reflect societal disapproval. It critiques societal stigma against victims, not perpetrators, and dismisses the distinction between marital rape and other IPC offenses (e.g., hurt under Sections 319–323, cruelty under Section 498A). Labeling is critical for legal accountability. (Para 149)

False cases and empirical evidence

The judgment refutes fears of false cases, citing National Family Health Survey (NFHS-4) 2015–16 data showing 99% of sexual assaults go unreported. It dismisses the argument as exaggerated, noting courts handle false complaints under IPC provisions like Section 498A (Para 151). The state’s interest in protecting women from abuse outweighs unfounded concerns about misuse.

Here too, we can see the contrast in Justice Rajiv Shakdher’s judgement and Justice Hari Shankar’s judgement in terms of reliance on data. As mentioned in our analysis of Justice Harishankar’s judgement, his analysis lacks empirical data or backing of scholarly work when he asserts that rape by a stranger and non-consensual sexual activity by a husband are not equal in the terms of the psychological trauma they inflict on the woman.

Invasion of the private sphere

The judgment rejects claims that prosecuting marital rape invades private marital space. It distinguishes rape from other marital crimes (e.g., cruelty, hurt) by emphasizing constitutional rights. Citing Joseph Shine vs Union of India (2018), it holds that privacy cannot shield rights violations, and marital intimacy is not exempt from constitutional scrutiny (Para 152).[4] The judgment dismisses arguments about evidentiary difficulties, equating marital rape to other private-space crimes. 

Conclusion

Justice Rajiv Shakdher’s judgment in RIT Foundation is a masterclass in constitutional adjudication, dismantling the marital rape exception (MRE) not merely as a legal anomaly but as a moral affront to India’s republican ethos. By anchoring his analysis in the lived realities of women—where marriage becomes a license for tyranny—he transcends abstract doctrinal debates to expose the MRE’s core flaw: its reduction of women to chattel, stripped of autonomy, dignity, and bodily integrity.

Justice Shakdher’s reasoning is a rebuke to judicial timidity. He rejects the facile argument that courts must defer to legislative “policy choices,” reminding us that the judiciary’s duty is to safeguard fundamental rights, not shield regressive laws from scrutiny. His invocation of Article 13—declaring unconstitutional any law that violates Part III—is a clarion call for courts to actively engage with societal evolution, rather than entombing themselves in the formalism of “separation of powers.”

The judgment’s brilliance lies in its refusal to treat marriage as a sacred cow. It dissects the MRE’s “conjugal expectations” myth, revealing it as a fig leaf for systemic misogyny. By contrasting the legal protections afforded to unmarried rape survivors with the abject denial of justice for married women, it lays bare the MRE’s arbitrary cruelty.

Yet, Justice Shakdher’s verdict is more than a legal victory; it is a philosophical manifesto. His assertion that “when marriage is tyranny, the State cannot have a legitimate interest in saving it” challenges the very premise of a legal regime that prioritizes familial “stability” over individual rights. This is not merely about criminalizing marital rape—it is about redefining marriage itself as a partnership of equals, not a hierarchy of domination.

In contrast, Justice Hari Shankar’s deference to legislative inaction and his elevation of marriage as an institution above constitutional rights represent a jurisprudential throwback, clinging to a vision of the law as a tool for social control rather than liberation. The split verdict, therefore, is not merely a clash of legal opinions but a microcosm of India’s broader struggle between tradition and transformation.

Justice Shakdher’s judgment is a testament to the Constitution’s living spirit—a reminder that rights are not mere parchment promises but living guarantees that demand constant vigilance. By striking down the MRE, he does not merely correct a legal wrong; he reaffirms the judiciary’s role as the Constitution’s moral compass, ensuring a future where no woman’s body is subjected to patriarchal entitlement. In doing so, he invites us to reimagine justice not as a compromise between competing interests, but as an uncompromising commitment to human dignity.

(The author is part of the legal research team of the organisation)

[1] 2022 SCC OnLine Del 1404

^[2]  (2008) 3 SCC 1

[3] (2018) 10 SCC 1

[4] (2019) 3 SCC 39

Related:

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A Licence to Violate: Chhattisgarh HC’s ruling on marital rape exposes a legal travesty’

The post When marriage is tyranny: Justice Shakdher’s judgment reads down the marital rape exception as a constitutional imperative appeared first on SabrangIndia.

While Justice Rajiv Shakdher struck down the MRE, Justice C. Hari Shankar dismissed the petitions—upholding the constitutional validity of the MRE. This article will focus on Justice C. Hari Shankar’s opinion that upheld the constitutionality of the provisions, essentially denying any woman recourse under law prosecuting rape within the institution of marriage.

Facts

• The RIT Foundation, along with the All-India Democratic Women’s Association (AIDWA) and two other individuals, filed a petition challenging the marital rape exception (MRE) under Section 375, Exception 2 of the Indian Penal Code (IPC) 1860. The petition argued that the MRE should be struck down as it violated the constitutional rights of women and perpetuated gendered violence and discrimination.

Provisions involved

The following provisions were challenged:

• Section 375, Exception 2 of the IPC: This exception stated that sexual intercourse by a man with his own wife, who is not under 18 years of age, was not considered rape.
• Section 376B of the IPC: This section dealt with the punishment (2 years) for rape committed by a husband who was separated from his wife.
• Section 198B of the Code of Criminal Procedure (CrPC):  This sections states that no court shall take cognisance of an offence punishable under section 376B of the Indian Penal Code (IPC) where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband.

These abovementioned provisions remain in the same form in the Bharatiya Nyaya Sanhita, 2023 with different section numbers via Sections 63 and 67 of the BNS and Section 221 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Arguments advanced against MRE:

• • The MRE violated the constitutional goals of autonomy, dignity, and gender equality enshrined in Articles 15, 19(1) (a), and 21 of the Constitution.
  • The MRE treats women as the property of their husbands after marriage, denying them sexual autonomy, bodily integrity, and human dignity as guaranteed by Article 21.
  • The MRE violated the reasonable classification test of Article 14 as it created a distinction between married and unmarried women, denying equal rights to both.
  • The MRE should be struck down, and the punishment under Section 376B should also be invalidated as it discriminated between offences committed by separated husbands, actual husbands, and strangers.

Arguments for MRE’s constitutionality:

• • The crux of these arguments was twofold—court’s lack of power to read down the MRE thus creating a new offence and the fact that legislature had made a conscious decision to not label non-consensual sexual act between husband and wife as rape to protect the institution of marriage, by extension, families and progeny thus there is a legitimate object that the state is seeking to achieve via the MRE.

Justice C. Hari Shankar began his judgment by outlining the context and the specific challenge before the court. The petitioners argued that Exception 2 to Section 375, which states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape, is unconstitutional. They contended that this exception violates Articles 14, 19(1)(a), and 21 of the Constitution, which guarantee equality before the law, freedom of speech and expression, and protection of life and personal liberty, respectively. The petitioners emphasized the importance of sexual autonomy and consent, arguing that the exception undermines these principles by immunizing husbands from prosecution for non-consensual sexual acts within marriage.

On original objective and the continuing legislative intent

Justice C. Hari Shankar addressed the original objective and the continuing legislative intent behind the Marital Rape Exception (MRE) in his judgment. He emphasised that the original objective of the MRE, as conceived in the 1860 IPC, was not based on the outdated “Hale dictum,” which suggested that marriage implied a wife’s consent to sexual intercourse with her husband. Instead, the MRE was rooted in the unique nature of the marital relationship and the need to balance individual rights with the preservation of the institution of marriage.

He stated:

“There is nothing to indicate that the ‘marital exception to rape,’ contained in the Exception to Section 375 of the IPC, or even in the proposed Exception in Clause 359 of the draft Penal Code, was predicated on the ‘Hale dictum,’ which refers to the following 1736 articulation, by Sir Matthew Hale: ‘The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband, which she cannot retract.’ Repeated allusion was made, by learned Counsel for the petitioners, to the Hale dictum. There can be no manner of doubt that this dictum is anachronistic in the extreme, and cannot sustain constitutional, or even legal, scrutiny, given the evolution of thought with the passage of time since the day it was rendered. To my mind, however, this aspect is completely irrelevant, as the Hale dictum does not appear to have been the raison d’être either of Section 359 of the draft Penal Code or Section 375 of the IPC.” [Para 13]

Justice C. Hari Shankar further explained that the continuing legislative intent behind retaining the MRE is to preserve the institution of marriage. He highlighted that the legislature, in its wisdom, has chosen to treat non-consensual sexual acts within marriage differently from those outside of marriage. He argued that this distinction is based on an intelligible differentia that has a rational nexus to the object of preserving the marital institution.

In essence, Justice C. Hari Shankar maintained that the continuing legislative intent behind the MRE is to protect the institution of marriage by distinguishing between non-consensual sexual acts within marriage and those outside of it. He emphasized that this distinction is not arbitrary but is based on a rational assessment of the unique dynamics of the marital relationship and the broader societal interests at stake.

On rational nexus and intelligible differentia

Justice C. Hari Shankar further analyses the concept of “intelligible differentia” and “rational nexus” in the context of Article 14 of the Constitution.

His interpretation rests on the foundational premise that the marital relationship is intrinsically distinct from all other forms of relationships, particularly in that it carries an inexorable incident of a legitimate expectation of sexual relations.

He articulates this position as follows:

“The primary distinction, which distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex.”

This formulation forms the central pillar of his justification for treating non-consensual sexual acts within marriage differently from those outside of it. The judgment thus constructs an argument wherein marriage, as a legal institution, grants a presumption of consensual intimacy, differentiating it from other relationships where consent must be independently established.

He states:

“The legislature is free, therefore, even while defining offences, to recognise ‘degrees of evil.’ A classification based on the degree of evil, which may otherwise be expressed as the extent of culpability, would also, therefore, be valid. It is only a classification which is made without any reasonable basis which should be regarded as invalid. While the Court may examine whether the basis of classification is reasonable, once it is found to be so, the right of the legislature to classify has to be respected. Where there is no discernible basis for classification, however, or where the basis, though discernible, is unreasonable or otherwise unconstitutional, the provision would perish.” [Para 144]

Internal inconsistencies within the IPC framework

However, this reasoning, while maintaining internal consistency within the judge’s interpretative framework, encounters contradictions within the broader legal architecture of the IPC—particularly when juxtaposed with Section 376B, which criminalizes non-consensual intercourse between a husband and wife during separation.

Section 376B, which prescribes a lesser punishment (up to two years of imprisonment), nonetheless acknowledges that marital status alone does not create an absolute or irrevocable expectation of sexual relations. This provision, therefore, implicitly recognizes a wife’s autonomy and the necessity of consent, at least in specific contexts. The logical inconsistency emerges in two key aspects:

1. Recognition of autonomy in judicial and non-judicial separations

1. • Section 376B (punishment for rape by a husband during separation) does not require a court-ordered decree of separation for its application, meaning that a wife living separately from her husband—without a state-recognized order—still retains legal protection against non-consensual intercourse involving her own husband.
   • This directly contradicts the fundamental assumption of the MRE, which presumes that marriage inherently entails continuous consent to sexual relations. If the institution of marriage is so distinct and special, then why does the law acknowledge that consent is required during separation, even without formal judicial recognition? It is to ensure that all institutions are within the bounds of the Constitution and the value system it espouses. To this extent, the Criminal Law Amendment Act, 1983 added the current 376B (it was added as 376A but was later renumbered to 376B in 2013 after the Criminal Law Amendment, 2013).

2. The status of underage marital rape under IPC

1. • The inconsistency is further compounded by the fact that the IPC (via the Independent Thought vs Union of India judgement) criminalizes non-consensual intercourse with a wife below the age of 18, thereby recognizing the primacy of consent in certain marital contexts.
   • If the marital bond inherently carries an expectation of sexual relations, as the judgment asserts, then the legal system’s refusal to extend this principle to child marriages undermines the assumption of an absolute and uninterrupted sexual expectation within marriage. However, it has been extended to bring it in consonance with the constitutional principles in Independent Thought vs. Union of India.[2]

The judgment by Justice C. Hari Shankar relies on the intelligible differentia test to uphold the MRE, but the incoherence in its application becomes evident when viewed through the lens of Section 376B and related provisions. If marriage is a uniquely protected institution, then its sanctity should logically override even non-judicial separations—yet it does not. This suggests that when the law is compelled to acknowledge a wife’s individual autonomy, it does so in ways that directly conflict with the underlying justification for the MRE.

One could argue that a clear distinction exists in the punishments, as spousal rape during separation carries a lighter sentence (two years) compared to the harsher penalties under Section 375. However, this distinction collapses under scrutiny because:

• The recognition of consent during separation (including non-judicial separation) means that the “legitimate expectation of sex” argument is not absolute.
• The law, therefore, implicitly concedes that the marital institution does not override a wife’s right to autonomy in every instance.
• If the expectation of sexual relations within marriage were as absolute as the judgment suggests, then non-consensual intercourse during a non-court-ordered separation should not have been an offense at all.

The IPC’s contradictions — recognizing marital consent in separations (Section 376B) and criminalising underage marital rape — dismantle the “intelligible differentia” justifying the marital rape exception (MRE). By acknowledging that consent matters even within marriage, the law inadvertently concedes that marital status alone cannot negate autonomy. This fractures the MRE’s foundational logic: if a separated or underage wife retains constitutional rights to bodily integrity (Articles 14, 21), why does cohabitation erase them? The disparity in punishments (2 years vs. 10 for non-marital rape) further portrays a patriarchal hierarchy, implying a husband’s “claim” outweighs a wife’s dignity — a stance antithetical to Article 15’s prohibition of gender discrimination and to Constitutional Morality as espoused in Navtej Singh Johar vs Union of India.[3]

On Article 19 and 21

Justice C. Hari Shankar also addresses the argument that the exception violates Article 19(1)(a) by restricting a married woman’s right to sexual self-expression. He rejects this contention, stating that the exception does not compromise a woman’s right to consent or refuse consent to sexual relations. Instead, it merely recognises the complex interplay of rights and obligations within a marital relationship. Similarly, he dismisses the claim that the exception infringes upon Article 21, asserting that there is no fundamental right under the Constitution for a woman to prosecute her husband for rape in the context of marriage. It is here that Justice C. Hari Shankar makes deeply problematic observations that highlight and symbolise the underrepresentation of women and their voices, both in the society and in the judiciary that has contributed to emergence views such as follows.

He states as follows:

“If one were to apply, practically, what has been said by Mr. Rao of the crime of “rape”, the entire raison d’etre of the impugned Exception becomes apparent. As Mr. Rao correctly states, rape inflicts, on the woman, a “deep sense of some deathless shame”, and results in deep psychological, physical and emotional trauma, degrading the very soul of the victim. When one examines these aspects, in the backdrop of sexual assault by a stranger, vis-à-vis nonconsensual sex between husband and wife, the distinction in the two situations becomes starkly apparent. A woman who is waylaid by a stranger, and suffers sexual assault – even if it were to fall short of actual rape – sustains much more physical, emotional and psychological trauma than a wife who has, on one, or even more than one, occasion, to have sex with her husband despite her unwillingness. It would be grossly unrealistic, in my considered opinion, to treat these two situations as even remotely proximate. Acts which, when committed by strangers, result in far greater damage and trauma, cannot reasonably be regarded as having the same effect, when committed by one’s spouse, especially in the case of a subsisting and surviving marriage. The gross effects, on the physical and emotional psyche of a woman who is forced into non-consensual sex, against her will, by a stranger, cannot be said to visit a wife placed in the same situation vis-à-vis her husband. In any event, the distinction between the two situations is apparent. If, therefore, the legislature does not choose to attach, to the latter situation, the appellation of ‘rape’, which would apply in the former, the distinction is founded on an intelligible differentia, and does not call for judicial censure.” [Para 184]

Essentially, Justice C. Hari Shankar says that rape by a stranger is more psychologically damaging than rape by a husband of his wife.

For starters, this line of reasoning differentiates the intensity of suffering on the basis of the identity of the victim’s vis-a-vis her relation to the accused depending on whether the accused is the victim’s husband or a stranger. This exercise was unnecessary, if not deeply flawed and regressive.

Moreover, the same Section 376 which punishes rape has a stricter punishment for aggravated rape—which punishes rape by people in authority or relatives. Therefore, the law deems rape by people who are in positions of authority/trust more serious than other cases. This distinction should have prompted Justice C. Hari Shankar to delve into the issue with much more sensitivity to the suffering of a victim which it failed to do.

This is not to say that the relation between people in authority and the victims is same as marital relationship. The reason for quoting this example is to show that trauma cannot be said to be less or limited when a husband commits rape when compared to a when a stranger commits the offence.

Secondly, a simple search would have given Justice Hari Shanker studies and scholarly research that discussed how traumatic it is for women to be raped by their own husbands. From Diana Russell’s pioneering work on Rape in Marriage in the 1980s to recent studies on marital rape that reveal its devastating physical, reproductive, sexual, and psychological impact on women well into old age, there is well-established scholarship on the effects of marital rape. Given this, Justice C. Hari Shankar’s casual categorization of these traumas into different tiers is deeply concerning if not problematic (Bhat and Ullman, 2014;  Band-Winterstein T. and Avieli, 2022)[4][5]

On creation of a new offence

Justice C. Hari Shankar further considers the potential consequences of striking down the exception. He notes that doing so would create a new offence of “marital rape” and would necessitate a re-evaluation of the punishments prescribed under Section 376 of the IPC. He also highlights the practical difficulties that would arise in proving consent in cases of marital rape, given the private nature of the marital bedroom. The judge argues that these considerations weigh in favour of retaining the exception, as the legislature has the authority to make policy decisions regarding criminal law.

He maintained that the MRE is an integral part of Section 375 of the Indian Penal Code (IPC) and that removing it would fundamentally alter the scope of the offense of rape. He argued that the MRE is not merely an exception but a critical component of the legal framework that defines the offense of rape.

He stated:

“Offences may legitimately be made perpetrator-specific or victim-specific. In the present case, Section 375, read as a whole, makes the act of ‘rape’ perpetrator-specific, by excepting, from its scope, sexual acts by a husband with his wife… The specification of the identity of the man, and his relationship vis-à-vis the woman, which presently finds place in the impugned Exception might, therefore, just as well have been part of the main provision.” [Para 203]

However, MRE itself is what makes the offense of rape perpetrator-specific, and removing it would merely restore the general applicability of the offence to all individuals, regardless of their marital status. This view is supported by the Supreme Court’s decision in Independent Thought vs Union of India. In this case, the same provision was dealt with. The Marital Rape Exception, before the Independent Thought judgement, applied to non-consensual sexual acts with wife who is 15 years and above. Since it contrasted the Protection of Children from Sexual Offences Act, 2012 and the overall Constitution, the provision was read down to have it applied to only acts with a wife who is 18 and above thus protecting those women who are less than 18 years of age.

This is what the court said in Independent Thought addressing the concerns over it creating a new offence:

 One of the doubts raised was if this Court strikes down, partially or fully, Exception 2 to Section 375 Indian Penal Code, is the Court creating a new offence. There can be no cavil of doubt that the Courts cannot create an offence. However, there can be no manner of doubt that by partly striking down Section 375 Indian Penal Code, no new offence is being created. The offence already exists in the main part of Section 375 Indian Penal Code as well as in Section 3 and 5 of POCSO. What has been done is only to read down Exception 2 to Section 375 Indian Penal Code to bring it in consonance with the Constitution and POCSO. 

The judgement by Justice C. Hari Shankar does not deal with this prima facie similarity between the reasoning of Independent Thought and the reasoning of petitioners as to why reading down MRE does not create a new offence. He states as follows:

But, assert learned Counsel for the petitioners, by striking down the impugned Exception, this Court would not be creating an offence. They rely, for this purpose, on Independent Thought , in which it was held that the Supreme Court was not creating an offence by reading down the impugned Exception to apply to women below the age of 18. The analogy is between chalk and cheese. The situation that presents itself before us is not even remotely comparable to that which was before the Supreme Court in Independent Thought. We are not called upon to harmonise the impugned Exception with any other provision. The petitioners contend that the impugned Exception is outright unconstitutional and deserves to be guillotined. Would we not, by doing so, be creating a new offence?

We do not see any engagement with the proposition advanced by the petitioners or with the reasoning in Independent Thought. Striking down the marital exception would not create a new offence but would merely extend the application of Section 375 to all individuals, irrespective of marital status. Justice C. Hari Shankar’s concern—that such a move would turn previously non-offenders into offenders and that criminalization is the legislature’s prerogative—remains unreasoned when examined in light of the approach taken in Independent Thought.

Conclusion

Justice C. Hari Shankar’s judgement is a mix of genuine judicial restraint and a deeply flawed reasoning that puts women and their autonomy on the back burner, for the purpose of patriarchal notions of desire in the garb of sanctity of marriage. His reasoning after a point goes from flawed to problematic when he states the following: “Any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, in my view, is not only unjustified, but is ex facie unrealistic.” [Para 130]

While he is entitled to present his judicial opinion, he does not provide any reasoning for differentiating the trauma of marital rape from that of rape by a stranger. We do not know if he relied on any survey, or on what basis he came to his conclusion. The assertion lacks empirical evidence or scholarly backing and instead relies solely on personal assumptions, which are disconnected from established research on marital rape trauma.

Justice C. Hari Shankar’s wisdom in exercising judicial restraint is robust, tenable and sound when it relates to the argument that such change must come from the legislature. While it might not be entirely agreeable, there is a level of doctrinal firmness to it.

However, his views on marriage, expectations of sex and autonomy of women struggle to find their ground in the concepts of constitutional morality, ethical logic but flow with the flaws of regressive outlook on what a marriage is. These flaws stem not only from an inadequate understanding of how the law attributes sanctity to marriage but also from a superficial and reductive view of the emotional and psychological trauma endured by married women when their trust is violated by their own husbands through marital rape. In this sense, the flaws not only are legal, but also moral.

The novel contribution of this judgement is not the exercise of judicial restraint but an expression of outdated perception of marriage—one that subordinates constitutional morality to patriarchal tradition.

In the next part, the judgement of Justice Rajiv Shakdher declaring the MRE to be unconstitutional and his reasoning in answering some pertinent questions raised by Justice C. Hari Shankar will be discussed.

(The author is part of the legal research team of the organisation)

[1] 2022 SCC OnLine Del 1404

[2] [2017] 10 SCC 800

[3] (2018) 10 SCC 1

[4] Bhat, M. and Ullman, S.E., 2014. Examining marital violence in India: Review and recommendations for future research and practice. Trauma, Violence, & Abuse, 15(1), pp.57-74.

[5] Band-Winterstein, T. and Avieli, H., 2022. The lived experience of older women who are sexually abused in the context of lifelong IPV. Violence against women, 28(2), pp.443-464.

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When marriage is tyranny: Justice Shakdher’s judgment reads down the marital rape exception as a constitutional imperative

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A Licence to Violate: Chhattisgarh HC’s ruling on marital rape exposes a legal travesty’

The post How Justice C Harishankar, in upholding the exception to marital rape, delivered a reasoning fir for the dark ages appeared first on SabrangIndia.

As Imam Muhsin famously said, “The heart is not big enough to contain both fear and faith. You choose.” He chose faith, and was willing to be true to his interpretation of Islamic teachings, despite years of experiencing threats of violence from conservative extremists. Through his teachings and queer-affirming Al-Ghurbaah Mosque in South Africa, he inspired Muslims locally and globally to live authentic lives without abandoning their faith.

In addition to our gratitude for his work overall, we at MPV particularly want to acknowledge his contributions to our advocacy efforts in Urdu, including delivering this lecture to Urdu-speaking audiences.

While there is much we don’t yet know about the circumstances of his death, we know too well the many death threats Imam Muhsin had received over the years. We are disgusted by those condoning his murder and it is this theology of hate and of homophobia that has resulted in the intense threats on his life. We join Muslims and allies around the world in calling for the South African government to leave no stone unturned in investigating the motivation for his murder, and as a possible hate crime.

The attack on Imam Muhsin comes at a chilling time of increased violence against LGTBQ people all around the world, including in the US, and we call on Muslims to show compassion and support for this increasingly vulnerable population.

We join Muslims and allies worldwide in offering prayers for justice and healing for all of those impacted by this horrific killing. We call on all Muslims, regardless of our political and religious differences, to build a culture of tolerance and curiosity for various interpretations of Islam. At MPV, we will continue to advocate for freedom of religion for all, and freedom from persecution for all, demonstrating the beauty of Islam just as Imam Muhsin did.

A Statement from the Colleagues of Imam Muhsin at the Center for Contemporary Islam at University of Cape Town.

Indeed to Allah we belong, and indeed, to Allah we return. We are reeling from the targeted assassination of Imam Muhsin Hendricks, the first openly queer Imam in South Africa. Imam Muhsin was a pioneer in the rights of queer Muslims having previously led The Inner Circle and more recently the Al-Ghurbaah Foundation. He was recognised as a global leader who created a space to reconcile Islam, faith and sexual diversity, and provided a refuge for young queer Muslims that had been rejected in their homes. Muhsin courageously tracked a path of religious inclusivity and a vision of Islam as a home for all.

His theology was a liberation theology: God is a God of radical love and justice for all human beings. The safe space created by his work brought relief beyond the community of queer Muslims, extending to refugees, people who were homeless, those marginalised without community and belonging, for whom he provided a space of inclusion.

Despite this, we are also reeling from the ways in which some Muslims are condoning his assassination on social media. The compounded horror of such violence and brutality has brought into sharp focus the intense homophobia permeating the Muslim community.

This is a time for each of us as individuals, as well as in our collectives, whether in mosques, in community organisations, in our Palestinian solidarity formations, to deeply reflect on the ways in which our work for justice must be all-inclusive, and the right to dignity is unconditional.

In the last two years we have witnessed a genocide enabled by the language of dehumanisation of Palestinian people. It is the same underlying logic of dehumanisation that enables a targeted assassination of a queer human being who stood up for justice. We must recognise that when we are silent in the face of homophobia, patriarchy and

Zionism, we enable not only violent systems, but systems that perpetuate violence and death. We are both ethically and spiritually accountable.

The Prophet Muhammad (pbuh) was sent as “Rahmatan li-l-Aalamin,” a mercy to all worlds, everywhere in all times. Every human being deserves justice and dignity.

Imam Muhsin has completed his work on this earth; it is for us to begin ours. Let us have the difficult conversations, let us grow seeds of love, justice and compassion. Let us truly engage what it might be to follow the sunnah of the Mercy to the worlds.

We salute your courage, Shaheed (Martyr) Imam Muhsin. May your soul be embraced in love and compassion by Allah. Dear contented soul, return to your Lord; may your Lord be pleased with you, may you be pleased with your Lord. May the work of justice, love and inclusivity that you worked so hard towards be realised. May we grow our communities in the work of justice, love and all-inclusive dignity.

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As they tell you about the life of a woman, the pain, the burden, the labour, you will smile and laugh because they will package your horrifying future in fairytales, song and dance, couture, grand palaces, fitting tributes to motherhood being the greatest experience in the world, so much so that you will hope and pray and eagerly await this time of your life. You will dream of a love that sweeps you off your feet, you will dream of a man who sees you for who you are, you will put aside your ambitions and dreams and “hobbies” and your individuality to fit into his life and be part of his family. You will water yourself down to the barest bits, till you are palatable, till you fade into a corner, till you are unrecognizable from who you once were. This will be the biggest tragedy of your life.

But it will be grand and you will look so pretty and everyone will be so happy so you will silence the tiny voice at the back of your head, wear your Sabyasachi and go meet the love of your life and leave your life and individuality behind with great pomp and show. At first, it will seem beautiful, this new life. You will love the feeling of love; you will enjoy the affection this man will shower on you. You will take his last name, and his dishes off the table, and his dirty underwear and his parent’s expectations and you will run with them. You will submerge yourself in these and allow the validation and placation you feel all around you, not to mention the warm glow of love to slowly fill the void in your soul that came from who you once used to be. You will serve him and his family in the kitchen during the day and you will serve him in his bed at night. You will enjoy it, and you will call it your choice and you will vociferously declare that you are the master of your fate and that love is everything and family is everything and you will be a willing slave to the expectations put upon you by this “family”. Nothing you ever do in this house will be enough. No amount of labour, no amount of effort, no matter how out of your way you go, you will be considered an outsider that is just doing your duty, and not well enough. You will bear his children and if you don’t want to, he will rape them into you. You will push yourself and push yourself and push yourself and that niggling voice will now come back screaming and swinging. You will hold your child that tore you open coming out, you will love it, and you will swallow the pain.

But the child will bear his name, the child will be his legacy, the child will be part of his family, and you will be only the cavity through which it came into the world, and the labourer that will raise it. The voice will by now consume you. You will fight it, fight to close your eyes to the reality fight to tell yourself that this is still your choice and the love that has faded in the background and been replaced with responsibility and expectation and servitude still exists and you are staying because of it, not because you are bound, not because there is no choice anymore and there never was but because you love him.

You love him? And this is your family. Is it? You will start rebelling and fighting and crying. You will fight and rage and cry, but you will still serve him in the kitchen in the morning and in the bedroom at night. You will think you can say no and so you will try to say no one day, and that will be the day you will learn. You will learn that he can do with you as he pleases. You will learn that whether he wants to shove his dick in you or his fist, it is all the same and it is all permissible because he is your husband, because you wore the Sabyasachi in a beautiful palace, and the flowers rained down and you walked down the aisle and sold yourself to his mercy. You will know that your blood, your bones, your voice, the tendons and muscles and your hands and legs, your back and front all belong to him and he can use any of them as he sees fit. The men that were supposed to protect you, the woman that brought you into this world, you will soon recognize them as the butchers that prepared you for slaughter.

Like a lamb you went beautiful and trusting and now on the chopping block with your spine broken. You will cry and bleat but the judges and the juries and the executioners will watch as he brutalizes you for his pleasure or for his power or for a fantasy and they will let him. And when he has gotten off and left you bloody and for dead, when he’s ripped you open this time not to bring life into the world but to take yours out, when that voice has been silenced forever and your vessel has served his purpose to him, you will be discarded. They will see his hands stained red with your blood, and they will look at your broken body and your gaping cunt and they will declare him not guilty.

Those men that protected you did it so one man and one man only could stake his claim on you, so he will be your first, your last, your only and your first breath was drawn to serve him and your last breath also served him, so is it a crime for a man to do as he sees fit with his property?

No. Is it a crime for a man to feel overwhelming passion for his wife? No. You, my love, were made for this. You didn’t know and the handcuffs were red and looked a lot like love and they were made of blood but you didn’t know. You didn’t know that the only good wives are the ones that die in silence on the inside before their death ever comes for them.

You didn’t know that often the wolves that own our bodies and drink our blood say ‘I love you’ and ‘Happy Anniversary’ and those who say they will save and protect and love us sell us to the wolves for a bent spine followed by a pat on the back.

(The author is a student of law in Mumbai and can be contacted at parulekarpriyanka02@gmail.com)

Related:

A Licence to Violate: Chhattisgarh HC’s ruling on marital rape exposes a legal travesty’

The post D*ck or fist appeared first on SabrangIndia.

A heinous crime and a judicial betrayal

The case in question is as gruesome as it is tragic. A woman was subjected to brutal sexual violence by her husband, which led to severe internal injuries and ultimately her death. In her dying declaration, she explicitly accused her husband of forceful sexual intercourse, an allegation corroborated by medical reports stating that she suffered from peritonitis and rectal perforation—injuries directly linked to the assault. Despite these damning details, the Chhattisgarh High Court overturned the trial court’s conviction and acquitted the accused of all charges, including culpable homicide, rape, and unnatural sexual offences.

The trial court in Bastar’s Jagdalpur had convicted the man under IPC Sections 304 (culpable homicide not amounting to murder), 375 (rape), and 377 (unnatural sexual offences), sentencing him to 10 years in jail. However, the High Court, in a deeply flawed reading of the law, ruled that the marital rape exception under Section 375 must also apply to Section 377. Justice Narendra Kumar Vyas held that because Indian law does not criminalise non-consensual sex within marriage, it cannot criminalise non-consensual unnatural sex either. This interpretation effectively grants husbands unchecked power over their wives’ bodies, insulating them from criminal liability even in cases of brutal sexual violence.

A judicial leap of absurdity

Justice Narendra Kumar Vyas, in his ruling, contended that the marital rape exception must extend to unnatural sexual offences under Section 377 of the IPC, as recognising consent for one while ignoring it for the other would be “inconsistent.” He argued that Exception 2 under Section 375 explicitly exempts a husband from being prosecuted for rape, thereby establishing that consent is not a legal requirement within marriage. Extending this logic, the court held that if forced vaginal intercourse by a husband is not considered rape, then non-consensual unnatural sex within marriage should not be treated as an offence either.

“Thus, it is quite clear that at the same time, as per the definition of Section 375 of IPC, the offender is classified as a ‘man’. Here in the present case, the appellant is a ‘husband’ and victim is a ‘woman’ and here she is a ‘wife’ and parts of the body which are used for carnal intercourse are also common, therefore, 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 bench added to the judgment.

The High Court further justified its decision by invoking a legal principle stating that when two provisions are inconsistent, the newer one takes precedence and nullifies the older law. While both Sections 375 and 377 were introduced simultaneously in the IPC, the 2013 amendment expanded the definition of rape while retaining the marital rape exception. Based on this, the court concluded that the modified provision effectively overrode Section 377 in the context of marriage, making non-consensual anal or oral sex between spouses legally permissible.

On the culpable homicide charge, the prosecution had relied on the woman’s dying declaration, which was recorded before an executive magistrate just hours before her death. In this statement, she had accused her husband of brutal sexual violence, which resulted in fatal injuries. However, the High Court dismissed this as unreliable, arguing that the declaration did not explicitly link the injuries to forced intercourse. Justice Vyas noted that while the trial court had accepted the dying declaration as evidence, the magistrate who recorded it testified that the victim had provided additional details separately. The High Court, in an astonishing twist, ruled that because a dying declaration should stand on its own without requiring corroboration, any additional statements made outside of it could not be relied upon.

Labelling the conviction under Section 304 (culpable homicide) as “perverse,” the court quashed the sentence, declaring that the trial court had failed to establish how the offence was proven beyond doubt. It criticised the lower court for convicting the accused without providing a clear basis for how Section 304 was applicable, ultimately ordering the husband’s immediate release from jail.

Further bolstering its decision, the court reiterated that since Exception 2 to Section 375 remains part of the statute, sexual intercourse between a husband and wife—no matter how violent or non-consensual—cannot be considered rape unless the wife is under 15 years of age.

“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 judgement stated.

It failed to acknowledge that the Supreme Court, in its 2017 Independent Thought ruling, had already struck down this age limit, declaring that sex with a wife under 18 years constitutes rape. The High Court, however, ignored this precedent, relying instead on an outdated and legally untenable reading of the law.

Justice Vyas took the argument even further, questioning how a husband could be prosecuted under Section 377 if every form of sexual intercourse between spouses was legally protected under the marital rape exception. He insisted that when the legislature retained the exception in 2013, it effectively nullified any conflicting interpretation that could criminalise a husband’s sexual acts against his wife. By this reasoning, he concluded that no offence under either Section 375 or 377 was made out against the accused, since the law does not recognise a wife’s lack of consent as relevant in marital relations.

The complete judgment may be read here.

A Pattern of Judicial Misogyny: The Madhya Pradesh High Court’s precedent

The Chhattisgarh High Court’s ruling is not an anomaly—it reflects a wider pattern of Indian courts failing married women. In a similarly outrageous judgment, the Madhya Pradesh High Court in Meghna Agarwal Vs. Anurag Bagadiya and another (2022) granted anticipatory bail to a husband accused of forcibly sodomising his wife, citing the marital rape exception. The court reasoned that Section 377, meant to criminalise unnatural sex, could not apply within marriage unless extreme cruelty was established. This interpretation disregards the fundamental principle that any non-consensual act—whether vaginal, oral, or anal—constitutes sexual violence.

By treating marriage as a protective shield against prosecution for sexual crimes, Indian courts are actively enabling spousal rape. These rulings institutionalise a grotesque double standard: a married woman’s suffering is deemed legally irrelevant in situations where an unmarried woman would receive full protection under the law.

Institutionalised discrimination against married women

The most glaring problem with this ruling is its blatant discrimination against married women. If the victim had been a minor or an unmarried woman, the accused would have been found guilty of rape. If the accused had committed the same acts against a stranger, he would have been punished under Section 377. The only reason he walks free today is because the victim was his wife—an outrageous legal position that strips married women of their fundamental right to bodily autonomy.

The present ruling also contradicts the Supreme Court’s Independent Thought judgment, which recognised marital rape in cases where the wife is below 18 years of age. In November 2024, in the case of S v. State of Maharashtra, the Bombay High Court ruled that sex with a minor wife is rape, reaffirming that the legal age of consent is 18, irrespective of marital status. Justice G.A. Sanap categorically rejected the argument that marriage grants automatic sexual rights over a wife’s body. Similarly, in other instances, courts have recognised that non-consensual sexual acts within marriage can be prosecuted under different sections of the IPC. Yet, the Chhattisgarh HC has chosen to take a regressive approach, doubling down on an archaic and indefensible legal exception. If forced sex with a minor wife is rape, why should force sex with an adult wife be any different? The ruling reinforces the deeply patriarchal notion that marriage gives a husband unchallenged ownership over his wife’s body, a mind-set that has no place in a constitutional democracy.

The Supreme Court’s deafening silence

This verdict also highlights the Supreme Court’s prolonged inaction on the marital rape issue. For over two years, petitions challenging the constitutional validity of the marital rape exception have been pending before the apex court. The government, instead of addressing the issue head-on, continues to argue that criminalising marital rape would be “excessively harsh” on husbands. This reluctance to act allows judgments like the Chhattisgarh High Court’s to flourish, reinforcing the idea that Indian wives have fewer legal protections than other citizens.

Worse still, the recently enacted Bharatiya Nyaya Sanhita (BNS), which replaces the IPC from July 2024, retains the same marital rape immunity and removes Section 377 altogether. This ensures that even the narrow protections married women had under the IPC will now cease to exist, further embedding this archaic injustice into law.

A dangerous precedent for women’s rights

The Chhattisgarh HC’s verdict is not just a legal travesty—it is a dangerous precedent that further erodes the rights of married women. By normalising the idea that consent is irrelevant in marriage, the ruling effectively sanctions sexual violence within matrimonial relationships. It also sends a chilling message to victims: the legal system will not protect you if your rapist is your husband.

If Indian courts and lawmakers truly believe in gender equality, they must abolish the marital rape exception and recognise a woman’s right to say no, irrespective of her marital status. Until then, judgments like these will continue to legitimise spousal sexual violence, condemning countless women to a lifetime of abuse with no legal recourse.

This is not just a failure of the judiciary—it is a failure of the Indian legal system to uphold the fundamental rights of half its population.

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With the introduction of the Bharatiya Nyaya Sanhita (BNS), 2023, Section 498A of the Indian Penal Code (IPC), which criminalised cruelty against married women, has been retained with minor modifications. Now listed as Section 85 of the BNS, the provision continues to address domestic violence and harassment, particularly in cases involving dowry-related cruelty. Despite its crucial role in protecting women, concerns over its alleged misuse have persisted, prompting calls for legal safeguards to prevent false cases while ensuring justice for genuine victims. This necessitates a balanced approach that upholds the law’s intent while incorporating necessary reforms to prevent its exploitation.

The primary criticism levelled against Section 498A is that it has been exploited by some women to file false complaints, leading to wrongful arrests and harassment of innocent individuals. This concern has been echoed in various Supreme Court and high court rulings, which have called for caution in its application. Yet, a crucial question remains largely overlooked: Is the problem rooted in the law itself, or is it the failure of institutions responsible for its implementation? This piece argues that the so-called misuse of Section 498A is not a reflection of the law’s inherent flaws but rather a consequence of systemic failures by law enforcement, the legal fraternity, and district court judges. Their lack of diligence, patriarchal biases, and procedural lapses often result in either wrongful prosecutions or the dismissal of genuine cases, creating an illusion of widespread abuse of the provision.

Understanding section 498A and its intent

Section 498A was specifically designed to protect women from cruelty, which includes acts that endanger their physical or mental well-being, harassment for dowry, and behaviour that could drive them to suicide. The provision is broad in its scope, recognising that cruelty manifests not only in physical violence but also in emotional and psychological abuse. Despite its protective intent, the law has been portrayed as a tool for harassment, with critics arguing that false cases are filed to settle personal scores. However, such claims often fail to acknowledge the larger reality—domestic violence and dowry-related abuse remain rampant in India, as consistently reflected in National Crime Records Bureau (NCRB) data.

The Supreme Court has addressed concerns regarding the misuse of Section 498A in several key judgments. In Shobha Rani v. Madhukar Reddi (1988), the Court held that the demand for dowry itself constitutes cruelty, reaffirming the necessity of stringent legal measures against such practices. In Samar Ghosh v. Jaya Ghosh (2007), the Court elaborated on the concept of mental cruelty, recognising that humiliation, emotional neglect, and lack of support could all amount to cruelty in matrimonial cases. The judgment in Savita Bhatnagar v. V.K. Bhatnagar (2014) further underscored that cruelty is not limited to physical violence but also includes psychological harm. More recently, in K. Srinivas Rao v. D.A. Deepa (2013), the Supreme Court acknowledged that filing false criminal complaints could itself amount to mental cruelty, which has often been cited in discussions about alleged misuse of the law. However, these cases highlight the need for better procedural safeguards, not the redundancy of Section 498A itself.

The necessity of Section 498A is further underscored by real-life cases of cruelty. In Ram Kishan Jain & Ors v. State of Madhya Pradesh, a woman was unable to meet dowry demands, leading to her being administered sedatives and ultimately attempting suicide by cutting her veins. In Surajmal Banthia & Anr. v. State of West Bengal, a woman was subjected to prolonged ill-treatment, denied food, and harassed to the point of death. Such cases illustrate the horrifying realities that necessitate strong legal protection under Section 498A. The provision does not solely address dowry-related violence but also encompasses any wilful conduct that endangers a woman’s health or safety. Yet, in cases such as Ashok Batra & Ors v. State, where a deceased woman’s letters detailing harassment were disregarded, the judiciary’s failure to treat such evidence seriously highlights the systemic shortcomings in the law’s implementation.

Use of section 498A

Section 498A has been instrumental in providing legal recourse to women who face cruelty and abuse within their matrimonial homes. In numerous cases, it has been a crucial tool in holding perpetrators accountable. For instance, in Ram Kishan Jain & Ors v. State of Madhya Pradesh, a woman was subjected to extreme cruelty when she was administered sedatives and later attempted suicide after being unable to meet dowry demands. Similarly, in Surajmal Banthia & Anr. v. State of West Bengal, the victim was ill-treated, denied food, and mentally tortured for days before succumbing to abuse. Cases like these highlight the persistent and grave nature of domestic cruelty, underscoring why Section 498A remains necessary.

The provision not only addresses dowry-related harassment but also extends to broader forms of cruelty, including emotional and mental abuse. In Ashok Batra & Ors v. State, the courts failed to give due weight to letters left behind by the deceased woman detailing her harassment, ultimately granting the accused the benefit of the doubt. Such instances demonstrate how, despite the presence of evidence, judicial reluctance sometimes leads to injustice for victims. Section 498A serves as a legal safeguard against such oversights, ensuring that complaints of cruelty are taken seriously and investigated thoroughly.

The real problem: systemic failures, not the law

The discourse on the misuse of Section 498A often fails to scrutinise the role of those responsible for its enforcement. Law enforcement officers frequently act arbitrarily—either making indiscriminate arrests without investigation or, conversely, dismissing genuine complaints due to entrenched biases or corruption. Legal professionals, too, contribute to the problem, with some exploiting procedural loopholes to either misuse the provision for personal gain or to shield accused individuals from accountability. District court judges, who preside over most of these cases, often lack the necessary gender sensitisation, leading to inconsistent verdicts where both wrongful convictions and unjust acquittals occur.

There are key elements to Section 498A that dictate its implementation. For an offence to be recognised under this section, the woman must be married, must have been subjected to cruelty or harassment, and such acts must have been perpetrated by her husband or his relatives. Additionally, situations that warrant immediate legal intervention include medical evidence of abuse, the refusal to return a woman’s assets under Section 406 IPC (criminal breach of trust), and threats or coercion that endanger her life. However, rather than conducting thorough investigations, police officers often either act hastily or dismiss complaints altogether, further complicating the issue.

Judicial interventions have sought to regulate the use of Section 498A by setting guidelines to prevent arbitrary arrests and ensure due process. However, such rulings should not be misinterpreted as evidence that the law itself is flawed; rather, they highlight the need for better enforcement mechanisms to ensure that both victims and the wrongfully accused receive justice.

Recent judgment lamenting “misuse of Section 498A”

Yashodeep Bisanrao Vadode v. State of Maharashtra (2024)

In October 2024, the Supreme Court overturned the conviction of a man under Sections 498A and 34 of the IPC, ruling that there was no substantive evidence against him. The appellant, the brother-in-law of the deceased, had been accused of harassing and torturing her over dowry demands, alongside her husband and sister-in-law. However, he challenged the High Court’s decision upholding his conviction, arguing that the alleged dowry demand took place in January 2010, whereas his marriage to the deceased’s sister-in-law occurred later in October 2010.

The Supreme Court found “no scintilla of evidence” linking him to the alleged cruelty and criticised the indiscriminate implication of family members in Section 498A cases. The bench emphasised that courts must be vigilant in identifying instances of over-implication to prevent innocent individuals from enduring unwarranted legal consequences. The judgment highlighted concerns over exaggerated accusations in 498A cases, cautioning against their misuse.

Payal Sharma v. State of Punjab (2024)

In November 2024, the Supreme Court cautioned lower courts against the unnecessary implication of distant relatives of a husband in Section 498A cases. The case arose after the complainant, the wife’s father, lodged an FIR shortly after the husband-initiated divorce proceedings. The complaint not only named the husband and his parents but also included the husband’s cousin and his cousin’s wife, alleging dowry harassment and cruelty. When the implicated relatives sought to have the case quashed, the High Court rejected their plea, citing the filing of the chargesheet.

On appeal, the Supreme Court criticised the High Court’s approach, stating that it was obligated to assess whether the inclusion of distant relatives was an instance of over-implication or exaggeration. The Court noted that the accused relatives resided in a different city from the complainant’s daughter, raising questions about the credibility of the allegations. Additionally, the Court clarified that while Section 498A does not explicitly define “relative,” the term should be understood in a common-sense manner, typically referring to immediate family members such as parents, children, siblings, and their spouses. It stressed that if allegations extend to individuals not directly related by blood, marriage, or adoption, courts must carefully scrutinise whether the claims are exaggerated. The judgment reinforced the need for judicial vigilance to prevent unwarranted prosecutions under Section 498A.

Achin Gupta v. State of Haryana (2024)

In the said case, the Supreme Court raised concerns over the potential misuse of Section 498A IPC and its equivalent provisions in the Bharatiya Nyaya Sanhita, 2023 (BNS), namely Sections 85 and 86. The Court urged Parliament to reconsider these provisions in light of the “pragmatic realities” surrounding allegations of cruelty in matrimonial disputes. The case involved a husband who had approached the Supreme Court after the High Court refused to quash an FIR filed against him under Sections 323, 406, 498A, and 506 IPC. The FIR had been lodged by his wife following his decision to initiate divorce proceedings on grounds of cruelty.

The Supreme Court held that if an FIR, when read in its entirety, suggests that criminal proceedings were initiated with an ulterior motive to harass the accused, the High Court must exercise its inherent powers under Section 482 CrPC to quash the case. The judgment cautioned law enforcement against the mechanical application of Section 498A in every case of marital discord, stating that police authorities should ensure that the provision is not used as a tool to exert undue pressure on husbands. The Court also emphasised that trivial disputes or day-to-day quarrels between spouses should not automatically be classified as cruelty under the law.

Expressing serious apprehensions over the misuse of Section 498A, the bench of Justices J.B. Pardiwala and Manoj Misra called upon the Legislature to reassess the provisions under the BNS before they took effect. The Court noted that while Sections 85 and 86 of the BNS largely replicate Section 498A IPC, the explanation defining “cruelty” has been structured as a separate provision under Section 86. The ruling reinforced the need for judicial scrutiny in matrimonial disputes and warned against indiscriminate prosecutions under the guise of protecting women’s rights.

Dara Lakshmi Narayana & others v. state of Telangana & another (2024)

On December 10, 2024, the Supreme Court once again cautioned against the indiscriminate use of Section 498A IPC, stressing that it should not be misused as a tool for personal vendetta. While quashing a domestic cruelty case against a husband and his in-laws, the bench comprising Justices B.V. Nagarathna and N. Kotiswar Singh criticised the growing tendency to implicate all members of a husband’s family in cases arising from matrimonial disputes. The Court noted that such misuse of the law distorts its original intent, which was to protect women from cruelty inflicted by their husbands and in-laws.

The case arose from a complaint filed by the wife after her husband sought the dissolution of their marriage. The Telangana High Court had refused to quash the domestic cruelty case, prompting the appellants—comprising the husband and his family—to approach the Supreme Court. Examining the complaint, the Court found that the allegations were vague and generalised, with no clear prima facie case against the accused. The Court observed that while genuine cases of cruelty must be taken seriously, frivolous and retaliatory complaints undermine the law’s credibility and burden the judicial system.

Justice Nagarathna, authoring the judgment, highlighted that while the provision was enacted to curb cruelty and ensure swift state intervention, its misuse has become increasingly common in matrimonial conflicts. The Court reiterated that Section 498A should not be weaponised to coerce or intimidate husbands and their families into submission. It also warned lower courts against mechanically prosecuting accused persons without scrutinising the legitimacy of complaints. In this case, the Court found that the wife had lodged the complaint as a counterblast to the husband’s divorce petition, thereby misusing the provision.

While quashing the proceedings, the Court clarified that its observations should not discourage women from filing genuine complaints under Section 498A when they have actually suffered cruelty. However, it stressed that cases lacking specific allegations should not be entertained, as they undermine the law’s purpose and erode trust in the legal system.

Digambar and another v. the State of Maharashtra and another (2024)

On December 20, 2024, the Supreme Court quashed a domestic cruelty case under Section 498A IPC against a husband’s parents, ruling that the case was filed with an ulterior motive to pressure their son into consenting to a divorce. The bench, comprising Justices B.R. Gavai and K.V. Viswanathan, set aside the Bombay High Court’s Aurangabad Bench decision, which had refused to quash the criminal proceedings.

The complainant alleged that her in-laws forced her to consume adulterated food, causing her miscarriage. She also accused them of mental and physical cruelty for not bearing a male child, leading to charges under Sections 312/313 IPC in addition to Section 498A. However, the Supreme Court noted that the complaint regarding the miscarriage and cruelty was made to the police two years after the alleged incident, with no supporting evidence that the appellants were aware of the complainant’s pregnancy or administered any harmful substances. The Court ruled that a mere allegation of cruelty does not constitute an offence unless it is shown to have been committed with the intent to cause grave injury, drive the victim to suicide, or inflict severe harm.

Justice Gavai, authoring the judgment, observed that the allegations were vague and lacked specific details of cruelty or misconduct. The only injury-related allegation mentioned that the complainant’s husband used to beat her, but no direct accusation was made against the appellants. Additionally, the Court pointed out the complainant’s failure to include these serious allegations in the ongoing divorce proceedings, raising doubts about her intentions. Given the two-year delay in filing the FIR, the Court inferred that the complaint was a retaliatory measure to exert pressure during the divorce case.

By quashing the proceedings, the Supreme Court reaffirmed that matrimonial disputes should not be weaponised through criminal complaints. It stressed that while genuine cases of domestic violence and cruelty must be taken seriously, courts should remain vigilant against attempts to misuse legal provisions for personal advantage.

Geddam Jhansi & Anr. v. the State of Telangana & Ors (2025)

On February 7, 2025, the Supreme Court quashed criminal charges of cruelty, dowry demand, and domestic violence against certain family members of the accused husband, emphasising the dangers of invoking criminal law in domestic disputes without specific allegations or credible evidence. The bench, comprising Justices B.V. Nagarathna and Nongmeikapam Kotiswar Singh, observed that family relationships are deeply rooted in social and cultural values and should not be disrupted by indiscriminate criminal proceedings. The Court stressed that while it is essential to protect victims of domestic violence, allegations must be scrutinised to prevent misuse of the law.

The case involved a complaint under Section 498A IPC, Section 506 IPC, and Sections 3 and 4 of the Dowry Prohibition Act, 1961, filed against the husband’s mother, his mother’s younger sister, and her brother-in-law. The appellants had sought to quash the proceedings, but the High Court refused, stating that a prima facie case had been made out against them. Challenging this decision, they approached the Supreme Court, which carefully examined the charge sheet and witness statements. The Court found that the allegations of harassment were based on information provided by the complainant to her parents rather than direct witness accounts. Additionally, claims of physical abuse by the husband and relatives were not mentioned in the complainant’s statement but had been added later by her parents, raising doubts about their credibility.

The Court further noted inconsistencies in the testimony of panchayat elders, who claimed to have attended meetings in Chennai despite residing in Telangana. It underscored that while specific allegations against the husband and mother-in-law existed, the accusations against the present appellants were vague. The Court warned against the tendency to implicate extended family members without clear evidence of their active participation in domestic violence. It clarified that merely failing to intervene in an abusive situation does not equate to perpetrating cruelty unless direct involvement is established.

Striking a balance, the Court reaffirmed that genuine cases of cruelty and violence must be addressed with sensitivity, ensuring that true perpetrators face consequences while preventing an indiscriminate legal dragnet. It held that there was no prima facie case against the appellants, as the evidence relied solely on the complainant’s allegations without specific roles attributed to them. Consequently, the criminal proceedings against them were quashed, with the Court making it clear that its findings would not affect the prosecution of other accused persons in the case.

Section 498A IPC: Addressing misuse without dilution

Section 498A of the Indian Penal Code was enacted to protect women from cruelty, particularly in the context of dowry-related harassment. However, debates around its alleged misuse have intensified over the years. While some argue that the law is frequently misused for personal vendettas, others assert that this narrative is largely exaggerated and has led to calls for dilution that could harm genuine victims. The reality is that the law is neither inherently flawed nor unnecessary; rather, its misuse stems from systemic weaknesses in enforcement, legal procedures, and societal attitudes.

Misuse of Section 498A does not occur in isolation. It involves various actors, each playing a role in how the law is applied or misapplied. A closer look at these factors reveals the need for reform in its implementation rather than weakening its protective provisions.

1. Complainants: False or exaggerated allegations: While Section 498A is a crucial legal safeguard for women facing domestic abuse, concerns about false or exaggerated complaints cannot be ignored. In some cases, women or their families may misuse the provision to settle personal scores, gain leverage in divorce or custody disputes, or pressure the husband’s family into financial settlements. The law’s stringent nature, which allows immediate arrest without preliminary investigation, can be misused in such situations.
2. Role of legal professionals: Some legal advisors contribute to the misuse of Section 498A by encouraging clients to file fabricated or exaggerated complaints. This is often done to strengthen matrimonial disputes, secure favourable financial settlements, or harass the husband’s family. Lawyers who prioritise winning cases over ethical considerations play a key role in enabling such exploitation.
3. Law enforcement and investigating agencies: The police, as the primary enforcers of the law, play a crucial role in its potential misuse. In some cases, officers arrest accused individuals solely based on complaints, without conducting a proper investigation. This may stem from external pressures, fear of being accused of negligence, or even corruption. Investigating agencies also contribute to wrongful prosecution when they fail to verify allegations thoroughly, sometimes due to inadequate resources or bias. The lack of proper scrutiny at this stage can lead to wrongful arrests, reinforcing the perception that Section 498A is frequently misused.
4. Judicial system and its role: The judiciary has acknowledged the possibility of abuse and issued guidelines to prevent wrongful prosecutions. However, inconsistencies in the application of these safeguards remain a challenge. The cognizable and non-bailable nature of the offence means that accused individuals can be arrested and face social stigma even before their case is heard in court. This reinforces the argument for stricter procedural safeguards while ensuring that genuine victims receive justice.
5. Societal and cultural influences: Deeply entrenched patriarchal norms contribute to the complex dynamics surrounding Section 498A. On one hand, families sometimes use the law as a weapon in dowry disputes or personal conflicts. On the other, societal conditioning discourages women from reporting domestic abuse, fearing social backlash. The stigma associated with marital discord often forces women to endure years of cruelty before seeking legal recourse, making it imperative that Section 498A remains a robust legal protection.
6. Lack of procedural safeguards: The absence of sufficient procedural checks has made Section 498A vulnerable to both misuse and under-enforcement. The law allows for immediate arrest without the need for preliminary verification, which can lead to wrongful detentions. At the same time, genuine victims often struggle to navigate the legal system due to patriarchal biases in law enforcement and the judiciary. Strengthening procedural safeguards—such as mandatory preliminary inquiries before arrest—could help balance the rights of the accused with the need to protect victims.

Strengthening implementation instead of dilution

Justice Dr Neela Gokhale of the Bombay High Court, speaking at an event on February 8, 2025, asserted that Section 498A is not misused but widely misunderstood. She noted that while some women may misuse the provision, this should not justify treating all cases under it as frivolous.

“I can confidently say that Section 498A is not being misused; rather, it is being misunderstood by everyone. It is now the responsibility of both the Bar and the Bench to rise to the occasion and offer appropriate legal guidance to clients,” she remarked, as per LiveLaw.

Justice Gokhale highlighted how societal attitudes discourage women from reporting domestic violence, citing a 2003 government report that found over 30% of married women in India experience physical, sexual, or emotional abuse at the hands of their husbands or in-laws. However, due to societal pressures, many cases remain unreported. She also addressed concerns regarding over-implication in complaints, where women sometimes name distant relatives to pressure the husband’s family into financial settlements.

Acknowledging this, she cautioned that overuse of Section 498A risks discrediting real victims.

“On the bench, we may see ten cases in a day where the ingredients of Section 498A are not met due to over-implication. But what about the eleventh case, which may be a genuine one? Unfortunately, such overuse affects the credibility of real victims, and this is deeply concerning,” she observed.

Re-orienting the application of Section 498A

Rather than advocating for dilution, efforts should focus on improving the implementation of Section 498A. The following reforms could help strike a balance between preventing misuse and ensuring justice for genuine victims:

• Stronger investigative protocols: Law enforcement agencies should be required to conduct a preliminary inquiry before making arrests in Section 498A cases, as recommended by the Supreme Court in Rajesh Sharma v. State of UP (2017). This would help filter out false complaints while ensuring that genuine victims receive immediate protection.
• Legal accountability: Lawyers who misuse procedural gaps to encourage false cases should face disciplinary action. Legal professionals must prioritise ethical advocacy over strategic litigation tactics.
• Judicial sensitisation: District court judges must receive gender sensitisation training to distinguish between routine marital discord and legally recognised cruelty. This will help ensure fair adjudication without bias against either party.
• Public awareness campaigns: Educating women on their rights and legal options can reduce unnecessary litigation while encouraging victims of genuine abuse to seek justice.

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Gujarat: On January 28, 2025, a 35-year-old tribal woman in Dahod district was brutally assaulted, disrobed, and paraded through her village by a mob, allegedly led by her in-laws, over an alleged extra-marital affair. The Gujarat police arrested 12 individuals and registered an FIR against 15 people, charging them with abduction, wrongful confinement, outraging modesty, and assault with intent to disrobe. The High Court took suo moto cognizance, demanding an action-taken report from state authorities the woman has since been rehabilitated under the ‘Suraksha Setu’ program.

In #Dahod #Gujarat, a tribal lady was brutally beaten and paraded naked over an alleged affair; 12 people arrested by police @MinistryWCD @WCDGujarat @BhanubenMLA @NCWIndia pic.twitter.com/D8TOjZNyyU

— GujaratHeadline News (@GujaratHeadline) February 1, 2025

Rajasthan: On September 2, 2023, a similar attack occurred in Pratapgarh district, where a 21-year-old pregnant tribal woman was allegedly kidnapped by her in-laws, stripped, and paraded naked after being accused of an extra-marital affair. The police arrested nine people, including her husband. The Rajasthan government formed a Special Investigation Team (SIT) and announced financial assistance for the victim. The case will be fast-tracked to ensure swift justice.

 

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 Manipur: On May 4, 2023, in a horrifying incident that drew national and international outrage, two women were paraded naked by a mob in Kangpokpi district during ethnic clashes between the Meitei and Kuki communities. The victims were allegedly gang-raped in a field. The Indigenous Tribal Leaders’ Forum (ITLF) condemned the act, and the Manipur government, under immense pressure, assured swift action. Police have identified the accused and are in the process of making arrests.

 

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Suresh Gopi’s controversial remarks on tribal affairs

Amid these escalating crimes, Union Minister and BJP MP Suresh Gopi sparked controversy with his remarks on the Tribal Affairs Ministry. Speaking at an election campaign in New Delhi, Gopi suggested that a Brahmin or Naidu leading the ministry would bring ‘big change’ to tribal welfare. Facing widespread backlash, he later withdrew his statement.

His comments expose the deep-rooted caste bias in India’s political discourse. The Tribal Affairs Ministry was created in 1999 to focus on the socio-economic development of Scheduled Tribes, who have historically faced oppression. Suggesting that a dominant-caste leader is necessary to ‘reform’ tribal affairs reflects an outdated and paternalistic mind-set.

Pattern of violence and systemic neglect

These incidents are not isolated. Crimes against tribal women continue to rise, often met with delayed justice or impunity. The High Court’s intervention in the Gujarat case and the swift action in Rajasthan and Manipur signal an urgent need for structural reforms and greater accountability in law enforcement.

Moreover, Gopi’s remarks highlight the persistent casteist attitudes that hinder genuine tribal empowerment. Political leaders must recognize that true progress comes from policies that uplift marginalized communities rather than reinforce historical hierarchies.

Call for action

The assaults in Gujarat, Rajasthan, and Manipur, along with the regressive remarks on tribal governance, demand urgent attention. Legislative measures must be strengthened to protect tribal women from gender-based violence. Additionally, political leaders must be held accountable for their statements to ensure that caste prejudices do not influence governance.

While outrage may dominate headlines today, real change will only come through sustained advocacy, policy reforms, and a collective effort to challenge deeply ingrained biases that continue to marginalize India’s tribal communities.

Related:

MP witnesses rising violence against tribals, as BJP youth wing leader caught beating a tribal elderly

Manipur Violence: Video showing 2 Kuki women being paraded naked opens the eyes of the government

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