2025 Marital Rape Bill: Bridging Judicial Restraint and Women’s Dignity

Introduction 

Marriage in society is really important to people. They think of it as something that should not  be questioned. When people use marriage as an excuse to take away a woman control over her  own body that is a big problem. It goes against what’s fair and right. The law in India says that  a husband cannot be charged with raping his wife, which is stated in the Indian Penal Code,  Section 375. Now it is also in the Bharatiya Nyaya Sanhita, 2023 under Section 63. This shows  that there is a conflict between what people believe and the basic rights that every person should  have. Marriage, in society and the Indian Penal Code are not giving women the rights they  deserve. Despite significant strides in recognizing women’s autonomy and sexual agency,  Indian law continues to presume irrevocable consent within marriage—an assumption that  stands at odds with the principles of dignity, equality, and personal liberty enshrined in the  Constitution. 

Historical Evolution of Marital Rape Exception 

The marital rape exception in Indian criminal law originates from Section 375 of the Indian  Penal Code, 1860, drafted by Lord Macaulay and rooted in the English common law coverture  doctrine, which treated wives as the property of their husbands and presumed irrevocable  marital consent. This colonial legacy insulated husbands from criminal liability for non consensual sexual acts within marriage. The changes made to the law after India became  independent did not go enough. The 172nd Law Commission Report from the year 2000 said  that the law should not be changed to make marital rape a crime because it could cause  problems in society. This was even though the Justice J.S. Verma Committee in 2013 said  strongly that marital rape should be a crime and that there should be no special treatment for  husbands.  

The Bharatiya Nyaya Sanhita from 2023 updated the law but it still said that husbands cannot  be charged with rape unless their wife is less, than eighteen years old which is not right. The  law still has an exception that says marital rape is not a crime and this exception is found in  Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita. Marital rape is still not considered  a crime even though the Justice J.S. Verma Committee and other people have said that it should  be. This distinction perpetuates inequality, particularly in light of NCRB data indicating a  conviction rate of approximately 4.5% for sexual offences. The Marital Rape Bill, 2025,  introduced by Dr. Shashi Tharoor, seeks to correct this imbalance by amending the BNS to include non-consensual sexual acts within marriage under the definition of rape, prescribing  punishments ranging from ten years to life imprisonment, while incorporating procedural  safeguards to prevent misuse.  

Judicial Restraint in 2025 Rulings 

Supreme Court and High Courts exhibited pronounced caution in 2025, consistently deferring  marital rape criminalization to the legislative domain amid mounting PILs. In Jane Kaushik v.  Union of India (November 2025), the apex court boldly expanded transgender rights under  Article 15, mandating inclusive employment quotas and anti-discrimination protocols, yet  explicitly deferred marital rape pleas, invoking the separation of powers doctrine: “Courts  cannot legislate where Parliament has spoken via BNS Exception 2”. This mirrored earlier  hesitancy, prioritizing institutional boundaries over judicial overreach. 

Delhi High Court’s split verdict in Aparnaa Bhattacharya v. Union of India (May 2022,  reviewed and reaffirmed January 2025) marked partial progress: the majority affirmed that non consensual marital sex constitutes a violation of Article 21’s bodily integrity and dignity,  drawing from Puttaswamy (2017), but stopped short of striking down Exception 2 to Section  63 BNS, urging “prompt parliamentary intervention” to avoid constitutional vacuum. Justice  Rajiv Shakdher’s concurrence highlighted dynamic consent, rejecting perpetual marital  immunity as archaic. 

The idea of being restrained is similar to what the Supreme Court said in the case of  Independent Thought v. Union of India in 2017. This case made it a crime for someone to rape  their wife if she is under 18 years old. The court did this by changing the way they looked at a  part of the law called IPC Exception 2. However the court stopped at cases where the wife’s an  adult because they wanted to keep marriages stable and peaceful. In 2025 some court decisions  followed this idea. For example the Bombay High Court made a decision in a case called Wife  v. Husband in September 2025. The court dismissed a complaint of rape that was linked to  Section 498A saying it was just a problem in the marriage.  

Article 21 and Women’s Dignity Imperative 

The law says that people have the right to life and to be free. This means that people have  control over their bodies and can make choices about what they do with them. This is really  important because it means that married people cannot be forced to do something they do not  want to do. Justice Chandrachud said that just because someone is married it does not mean they always agree to everything. If someone does not agree to something it can be very hurtful.  The law says that if someone hurts another person badly they can get in trouble. There is a  group called CEDAW that says countries should make it against the law for people to hurt each  other. India is going to be reviewed in 2025 to see if they are following these rules. 

The police in India reported that there were 31,516 rapes in 2024. A lot of these happened  within families. No one was punished for hurting their spouse. This shows that there are  problems, with how the law’s being enforced and people are not being protected like they  should be. The marital rape is an issue and it is also a violation of the marital rape law. The Bill  bridges this by mandating spousal consent education in SMA counseling and victim-centric  FIR protocols, harmonizing dignity with procedural fairness. 

Tharoor Bill 2025: Key Provisions and Analysis 

This law was introduced by a member of the group. It changes the BNS Section 63 by removing  Exception 2. This means that marital rape is now the same as being attacked by a stranger.  People who do this can be punished under Section 64. They can get a strict prison sentence that  can last for 10 years or even their whole life. To make sure this law is fair there are some  safeguards. For example the court needs to see evidence to prove that a crime was committed.  The court also needs two people to say that they saw the crime happen. The husband can say  that he thought his wife agreed to what happened. 

The good thing about this law is that it is similar to laws in countries like the UK and the US.  The UK got rid of this exception in 1991. Some states in the US also have laws, like this. This  law also gives power to women who are part of the government like the 33 percent of women  MPs who are part of the Mahila Shakti group. Cons: Potential misuse in acrimonious divorces,  addressed via HMA Section 13 fast-tracks. Compared to 2017-23 failed Bills, Tharoor’s  leverages 2025 Parliament momentum post-27 Bills session, with cross-party support.  Critically, it operationalizes Article 15(3)’s affirmative action via gender-sensitive policing  under new Malimath reforms. 

Challenges and Criticisms 

The 2025 Marital Rape Bill is facing a lot of challenges and criticisms. This shows that there  are problems in our society in the way judges make decisions and in politics. The 2025 Marital  Rape Bill is trying to make things better. It is meeting a lot of resistance from people who do  not want things to change. Some people do not want the 2025 Marital Rape Bill to become a law because they think it will hurt marriages. They believe that marriage is special and should  be protected. This idea is also mentioned in the 2013 Law Commissions 243rd Report. The  report says that many women do not want the 2025 Marital Rape Bill to become a law because  they are afraid of what people will think of them. They are also afraid that their families will  not want anything to do with them and that they will not have any money. This is because many  women are dependent on their husbands, for money and do not want to lose that support. 

The courts in India are really busy. This is a big problem. India has a lot of pending cases.  Around 4.3 crore cases are still waiting to be heard according to the NJDG 2025 data. This is  putting a lot of pressure on the system. Some people are worried that if marital rape cases are  reported it could add a lot of work for the courts. Around 50,000 cases every year according to  the NCRB projections. This could make it take longer to deal with sensitive cases. The Bill is  trying to solve this problem by setting up courts like the ones used for POCSO cases. These  courts would have to finish trials within 90 days as stated in BNS Section 346. The judges in  these courts would also be trained to be sensitive to gender issues. Some hearings could be held  online. However the Bill can only work if it gets money from the 2025 Union Budget and that  is not certain because of financial constraints.  

Conclusion 

The continued retention of the marital rape exception reflects a constitutional contradiction,  where women’s dignity and bodily autonomy are subordinated to marital status. Judicial  restraint, while respectful of legislative domain, has inadvertently prolonged this injustice. The  Marital Rape Bill, 2025 offers a critical opportunity to reconcile criminal law with  constitutional values by recognising consent as central to sexual relations, irrespective of  marriage. Criminalising marital rape is not an attack on the institution of marriage but an  affirmation that marriage cannot operate as a licence for sexual violence. Meaningful reform is  essential to ensure that women are recognised as equal, autonomous individuals under the law.i 

Endnotes (Bluebook 21st Ed.) 

1. India Const. art. 51A(f) (directing state to renounce practices derogatory to women’s dignity).
2. Bharatiya Nyaya Sanhita, No. 45, 2023 § 63, Exception 2  (India), https://egazette.gov.in/WriteReadData/2023/249631.pdf. 
3. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, 80–95 (paras. 193–270) (extending Article 21 to  bodily integrity). 
4. Indian Penal Code, No. 45, 1860 § 375 (India), https://www.indiacode.nic.in/handle/123456789/2263.
5. 172d Law Comm’n of India, Review of Rape Laws 1–15, 48–52  (2000), https://lawcommissionofindia.nic.in/reports/172rpt.pdf. 
6. Report of the Comm. on Amendments to Criminal Law (Justice J.S. Verma, Chair) 408–12 (Jan. 23,  2013), https://wcd.nic.in/sites/default/files/VERMAS%20COMMITTEE%20REPORT.pdf.
7. Nat’l Crime Records Bureau, Crime in India 2024, ch. 5, at 45, 52 (reporting 4.48 lakh crimes against  women; 29,670 rapes). 
8. Shashi Tharoor, Criminal Law (Amendment) Bill, 2025, Lok Sabha (Dec. 5, 2025), https://sansad.in/ls.
9. Aparnaa Bhattacharya v. Union of India, 2022 SCC OnLine Del 2313 (reviewed Jan. 2025).
10. Independent Thought v. Union of India, AIR 2017 SC 4904, (2017) 10 SCC 800.
11. India Const. art. 21; Puttaswamy, supra note 3, at 94 (para. 267). 
12. Bharatiya Nyaya Sanhita, No. 45, 2023 § 117 (India). 
13. CEDAW Comm., Gen. Recommend. No. 35, ¶¶ 24–30, U.N. Doc. CEDAW/C/GC/35 (July 26, 2017).
14. Special Marriage Act, No. 43, 1954 §§ 23–24  (India), https://www.indiacode.nic.in/handle/123456789/1894. 
15. Tharoor Bill, supra note 8 (proposing medical evidence, corroboration). 
16. Sexual Offences Act, 2003, c. 42, § 1 (UK) (abolishing marital exemption). 
17. Hindu Marriage Act, No. 25, 1955 § 13(1)(i) (India) (grounds for divorce). 
18. U.N. Women, Progress of the World’s Women 2019–2020 45 (36 countries retain exception).
19. Bharatiya Nagarik Suraksha Sanhita, No. 46, 2023 § 346 (India) (trial timelines).
20. Delhi High Court, Annual Report 2024 67 (FIR quashals). 
21. India Const. art. 51A(e) (promoting harmony and equality).