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When “Marriage” Becomes a Weapon of War: Refugee Protection and India’s Legal Blind Spot

Courtesy/By: PARAM SAKET SARANG | 31 May 2026 Views:218

When “Marriage” Becomes a Weapon of War: Refugee Protection and India’s Legal Blind Spot

Introduction: A Hidden Form of Warfare

War is not fought only with guns and bombs. In many modern conflicts, armed groups abduct women and girls and force them into so-called “marriages” with fighters. These coercive relationships are used as tools of domination, control, and warfare.

International criminal courts, including the Special Court for Sierra Leone and the International Criminal Court (ICC), have recognised that these are not genuine marriages. Instead, they involve:

Sexual violence
Forced domestic labour
Captivity and confinement
Psychological abuse
Denial of personal freedom and consent

The term “bush wives,” used in conflict jurisprudence, reflects the reality that such women are kept in marriage-like captivity rather than lawful or consensual marital relationships.

Forced marriage in conflict zones must therefore be understood as:

A deliberate strategy of warfare
A mechanism of social control
A form of organised coercion
A serious human rights violation

This legal understanding places the practice within the framework of:

Crimes against humanity
Persecution under refugee law
International human rights protection

Forced Marriage as Forced Recruitment

Modern refugee scholarship increasingly argues that forced marriage into armed groups should be understood as a form of forced recruitment.

Women and girls forced into these unions are often compelled to:

Cook and clean for fighters
Maintain camps
Perform domestic labour
Provide sexual services
Support the armed group’s social and logistical structure

In reality, the survivor is not merely forced into an unwanted relationship. She is compelled into supporting the functioning of the armed organisation through a coercive conjugal role.

This distinction is important because refusal to enter or remain in such arrangements may be interpreted by the armed group as:

Defiance of authority
Political opposition
Rejection of the group’s ideology

Why This Matters in Refugee Law

International refugee law protects persons persecuted because of actual or imputed political opinion.

The concept of imputed political opinion becomes highly relevant where an armed group treats:

Refusal of forced marriage
Escape from captivity
Resistance to conjugal servitude

as opposition to the group itself.

This approach improves on older views that treated forced marriage merely as a “private” or “family” dispute.

Where the marriage is imposed by an organised armed actor during conflict, the harm becomes:

Systematic
Militarised
Political in nature
Connected to territorial and ideological control

Accordingly, refugee law should recognise such persecution as politically connected rather than merely domestic or cultural.

Why Forced Marriage Amounts to Persecution

Conflict-related forced marriage clearly satisfies the legal threshold of persecution.

ICC materials emphasise that victims are denied:

Freedom of choice
Genuine consent
Bodily autonomy
Mental and physical integrity

Victims are often compelled through:

Physical force
Threats
Psychological pressure
Coercive environments

This causes:

Serious physical harm
Severe psychological suffering
Long-term trauma

The Special Court for Sierra Leone recognised forced marriage as an “other inhumane act” constituting a crime against humanity when a person is forced into a conjugal role during a widespread or systematic attack on civilians.

If conduct is serious enough to amount to a crime against humanity, it clearly satisfies the persecution requirement in refugee law.

India’s Refugee Law Problem

India has hosted refugee populations from many countries for decades. However, India still does not have:

A dedicated refugee law
A uniform asylum system
A formal refugee status determination framework

India is also not a party to:

The 1951 Refugee Convention
The 1967 Refugee Protocol

In the absence of a specific refugee statute, refugees and asylum seekers are generally treated as “foreigners” under domestic law.

The principal laws governing their presence include:

The Foreigners Act, 1946
The Passport (Entry into India) Act, 1920

These laws authorise:

Detention
Deportation
Removal of persons staying illegally in India

As a result, a woman fleeing the Taliban, ISIS, Boko Haram, or another armed group after being forced into a conjugal relationship would not enter a formal statutory asylum system because no such general system exists in India.

Her protection would instead depend upon:

Executive discretion
Access to courts
UNHCR procedures in limited situations

The Limits of Ad Hoc Protection

India’s refugee practice is not entirely protectionless, but it remains inconsistent and uneven.

In the absence of a national refugee framework:

UNHCR conducts refugee status determination for many asylum seekers from non-neighbouring countries and Myanmar.
The Government of India directly manages certain refugee groups such as Tibetans and many Sri Lankan refugees.

This creates inconsistency because:

Protection standards differ according to nationality and political context.
UNHCR recognition does not automatically create legal protection under Indian law.
Refugees remain dependent on administrative practice rather than statutory rights.

Indian courts have sometimes extended constitutional protection to non-citizens.

In NHRC v. State of Arunachal Pradesh, the Supreme Court recognised that the State must protect the life and liberty of every human being.

However:

Judicial protection remains case-specific.
Constitutional remedies cannot replace a comprehensive refugee framework.
There is still no predictable statutory asylum procedure.

The “Private Harm” Error

One major legal mistake is treating forced marriage merely as a private or domestic dispute.

International criminal law demonstrates that forced marriage during conflict is often:

Organised by armed groups
Used to control civilian populations
Connected to systems of terror and domination
Part of broader attacks against civilians

The abuse therefore, has political significance.

When a woman is punished for:

Refusing forced marriage
Escaping captivity
Being perceived as disloyal

The persecution arises from the armed group’s coercive political order, not merely from a private relationship.

The Exclusion Trap: Victims Mistaken for Perpetrators

Refugee law excludes persons responsible for serious international crimes.

However, survivors of forced marriage may wrongly be treated as collaborators merely because they were compelled to:

Cook for fighters
Clean camps
Travel with armed groups
Remain within armed-group territories

Such an approach is legally incorrect unless there is evidence of:

Voluntary participation
Significant contribution to crimes
Genuine criminal intent

Forced-marriage jurisprudence recognises that these relationships are imposed through:

Force
Threats
Coercion
Conditions of domination

Therefore, the survivor’s actions must be assessed through the lens of:

Lack of consent
Duress
Coercive circumstances

Women subjected to forced conjugal servitude should generally be treated first as victims rather than perpetrators.

India and Security-Law Ambiguity

India has encountered cases involving women and children linked to ISIS-controlled territories.

However, India currently lacks:

A general asylum statute
A codified refugee-status procedure
Gender-sensitive legal standards for evaluating coercion and victimhood

As a result, the present framework often merges refugee protection questions with:

Immigration control
National security concerns
Executive discretion

This creates a serious risk that:

Victims may be mistaken for ideological supporters.
Coercive association may be treated as voluntary participation.
Survivors may be denied protection without proper legal analysis.

Why India Needs a Refugee Law

India would benefit from a dedicated refugee statute based on principled asylum standards.

At a minimum, such a law should:

1. Recognise Core Refugee Grounds

The law should incorporate internationally recognised refugee grounds, including persecution based on:

Race
Religion
Nationality
Political opinion
Membership of a particular social group

2. Recognise Gender-Based and Conflict-Related Harm

The law should expressly recognise:

Forced marriage
Sexual slavery
Coercive conjugal servitude
Conflict-related gender violence

as grounds capable of engaging refugee protection.

3. Establish Fair Procedures

A modern asylum framework should provide:

Independent decision-making
Legal assistance
Judicial review
Gender-sensitive hearings

4. Protect Against Refoulement

The law should prohibit returning persons to countries where they face:

Persecution
Torture
Serious violence
Forced recruitment or coercion

5. Clarify the Exclusion Standard

The law should clearly state that coerced association with armed groups does not automatically establish complicity in:

Terrorism
War crimes
Crimes against humanity

especially where the applicant acted under threat and coercion.

Conclusion

Forced marriage during armed conflict is neither a cultural anomaly nor a private family issue. International criminal law recognises it as a grave coercive practice capable of constituting an inhumane act and, in appropriate contexts, a crime against humanity.

Women fleeing such arrangements are escaping:

Organised coercion
Political domination
Serious persecution

India’s present legal structure, based largely on executive discretion and the general law relating to foreigners, is not adequately equipped to address these realities.

Recognising conflict-related forced marriage as a valid ground for refugee protection would:

Improve legal clarity
Distinguish victims from perpetrators more fairly
Strengthen procedural fairness
Align Indian practice with constitutional values of dignity, liberty, and human rights

A principled refugee framework would therefore enhance both humanitarian protection and legal certainty in India’s response to modern conflict-related displacement.

Reference

UN General Assembly, Resolution 73/153, Child, Early and Forced Marriage, 17 December 2018.
UNHCR, *Guidelines on International Protection No. 1: Gender?Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol*, UN Doc. HCR/GIP/02/01, 7 May 2002.
UNHCR, *Guidelines on International Protection No. 2: ‘Membership of a Particular Social Group’ within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol*, UN Doc. HCR/GIP/02/02, 7 May 2002.
UNHCR, *Guidelines on International Protection No. 10: Claims to Refugee Status Related to Military Service within the Context of Article 1A(2) of the 1951 Convention and/or the 1967 Protocol*, UN Doc. HCR/GIP/13/10/Corr.1, 12 November 2014.
UNODC, Global Report on Trafficking in Persons in the Context of Armed Conflict (2018), 10?11.
Special Court for Sierra Leone (SCSL), Trial and Appeals Chambers – Forced marriage as ‘other inhumane acts’ (various decisions, referenced generally).
International Criminal Court (ICC), Prosecutor v. Dominic Ongwen, Appeals Chamber judgment (definition of forced marriage).
International Criminal Court, Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (prosecution of forced marriage policy in Timbuktu, Mali).
Court of Justice of the European Union (CJEU), Case C?285/12, Aboubacar Diakité v. Commissaire Général aux Réfugiés et aux Apatrides (EU:C:2014:39), paras 21?28.