Criminalisation of Marital Rape in India: The Legal Battle of 2025

INTRODUCTION

Marital rape is one of the most debated and sensitive legal issues in India today. For many years, Indian criminal law has treated marriage as a space where the normal rules of consent do not fully apply. Under the Indian Penal Code (IPC), and now under the Bharatiya Nyaya Sanhita (BNS), a husband cannot be punished for raping his wife unless she is below eighteen years of age.This rule, known as the marital rape exception, has created a serious legal problem. The same act—sexual intercourse without consent—is treated as a serious crime when committed by any man, but when the accused is the husband, the law gives him protection. This unequal treatment has become the centre of a nationwide debate, which reached an important stage in 2024–2025, when the Supreme Court of India agreed to examine whether this exception is constitutional.

This issue is not only about law; it is closely connected to social thinking, traditional gender roles, and how marriage is understood in modern times. The idea of the marital rape exception comes from old colonial beliefs, where a wife was seen as the “property” of her husband or where marriage was believed to mean permanent consent. These ideas do not fit with today’s constitutional values. The Indian Constitution guarantees equality, dignity, personal freedom, and protection from violence under Articles 14, 19, and 21. As society develops, an important question arises: Can marriage ever be used as a reason to excuse violence? If the Constitution protects the dignity and freedom of every person, should a woman lose these rights simply because she is married?

In recent years, different High Courts in India have taken very different views on marital rape. Some courts have strictly supported the exception, stating that it is clearly written in the law and that only Parliament has the power to change it. Other courts have taken a more progressive approach and have said that marriage cannot be used as an excuse for sexual violence. These opposing views, along with public discussions, legal challenges, and pressure from women’s rights groups, brought the issue before the Supreme Court. In 2025, the Supreme Court hearings became a major turning point, as the judges began to question whether the marital rape exception violates fundamental rights and whether consent within marriage should be treated the same as consent outside marriage.

The stand taken by the government has also increased the controversy. Before the courts, the Union Government has argued that making marital rape a crime could lead to misuse of the law or damage the institution of marriage. Many critics strongly disagree with this view. They argue that protecting marriage should never come at the cost of a woman’s safety, dignity, or control over her own body. They also point out that many other countries, including those with strong family values, have already recognised marital rape as a crime. According to them, India cannot continue to ignore this issue forever.

The debate on criminalising marital rape in India is therefore more than just a legal argument. It is a wider discussion about the meaning of marriage under the Constitution, the protection of women’s rights, and the need for the law to change with society. The year 2025 has become an important moment in this struggle, as the Supreme Court’s examination has opened the possibility of finally recognising that consent matters within marriage just as much as it does outside marriage.

This article examines this legal issue in detail by discussing its historical background, important court cases, constitutional questions, arguments from both sides, and the possible effects of criminalising marital rape. Through this discussion, the article aims to show that the marital rape exception has become legally, morally, and constitutionally unacceptable in present-day India.

Historical and Colonial Roots of the Marital Rape Exception

“In colonial India, marriage was not seen as a relationship between equals, but as a legal arrangement where a wife’s independent identity was largely ignored.”

The English Doctrine of Implied Marital Consent

The marital rape exception in Indian law is not accidental. It developed from British colonial rule, Victorian social beliefs, and the long-standing assumption that a woman lost her legal independence after marriage. Examining these origins is important because it makes it clear that the present legal position does not come from Indian traditions or constitutional values. Instead, it reflects old colonial ideas that treated women as legally subordinate to men.

A key influence behind this exception was the theory proposed by the 17th-century English judge Sir Matthew Hale. He claimed that when a woman married, she gave her husband lifelong consent to sexual relations. Under this theory, consent was assumed to be permanent and could never be withdrawn. As a result, a husband could not be held criminally responsible for rape within marriage. This concept of implied consent became part of English law and was later enforced in British colonies, including India.

This approach reduced marriage to a contract where the wife had no control over her own body. Consent was not understood as a continuing choice but as something automatically granted by marriage itself. Such thinking completely ignored a woman’s dignity, bodily autonomy, and personal freedom.

Victorian Morality and the Indian Penal Code, 1860

When the Indian Penal Code was drafted in 1860 by Lord Macaulay and the First Law Commission, it was heavily influenced by Victorian English values. Section 375 of the IPC defined rape but included an exception stating that sexual intercourse by a man with his wife was not rape if the wife was above a specified age, which was initially set very low. The issue of the wife’s consent was not considered at all. Marriage was treated as permanent permission.

This reflected the Victorian belief that a husband had legal authority over his wife’s body. At that time, women in England themselves had limited legal rights, and these unequal ideas were carried into colonial Indian law. The British legal system did not recognise marital cruelty, domestic abuse, or sexual violence within marriage as serious legal wrongs. The underlying assumption was that a married woman did not possess an independent sexual or legal identity.

The Phulmoni Dasi Case (1890)

The inhuman consequences of these colonial laws became clear in the Phulmoni Dasi case of 1890, also known as Empress v. Hari Mohan Maiti. In this case, an eleven-year-old girl was subjected to sexual violence by her husband, which ultimately caused her death. Despite the severity of the act, the husband could not be charged with rape due to the protection provided by the marital rape exception.

He was instead punished for causing grievous bodily harm. The case shocked the public and exposed the cruelty of the existing legal framework. While it led to a minor increase in the age of consent, the core problem remained untouched. The law continued to protect husbands even in cases involving child brides and fatal violence.

Independent India and the Continuation of Colonial Thinking

After independence, India reformed many laws inherited from colonial rule. However, the marital rape exception continued unchanged for decades. This persistence was largely due to social conservatism, patriarchal attitudes, and the belief that criminal law should not interfere in marital relationships. Marriage continued to be treated as a private institution beyond legal scrutiny.

Opportunities for reform were repeatedly missed. The 42nd Law Commission Report (1971) did not support criminalising marital rape. Later, following the 2012 Nirbhaya case, the Justice J.S. Verma Committee clearly recommended removing the marital rape exception, describing it as discriminatory and unconstitutional. Even then, the recommendation was not accepted by the government.

As a result, the marital rape exception that exists today is not rooted in Indian culture or values. It is based on a colonial mindset that viewed wives as the property of their husbands and treated marriage as permanent consent. Such thinking is incompatible with a constitutional democracy that promises equality, dignity, and personal liberty. Recognising this historical background makes it clear that the marital rape exception is a colonial remnant—outdated, unjust, and inconsistent with constitutional morality.

“The marital rape exception is therefore not an expression of Indian tradition, but a legacy of colonial patriarchy.”

The Status Quo: How Indian Courts Approach Marital Rape

In India, the current legal position on marital rape reveals a serious gap between written law and constitutional values. Under Exception 2 to Section 375 of the Indian Penal Code, a husband cannot be prosecuted for rape if his wife is above eighteen years of age. This rule is based on the old colonial belief that marriage itself implies consent to sexual relations. Although this exception remains part of the statute, Indian courts have increasingly questioned its fairness. Judges have repeatedly indicated that forced sexual relations within marriage violate a woman’s dignity and her right to make decisions about her own body. However, until the law is changed by Parliament or struck down by the Supreme Court, courts are limited in their ability to treat marital rape as a criminal offence. As a result, the judiciary has tried to address the issue through constitutional interpretation, civil laws, and strong judicial reasoning.

A significant shift in judicial thinking was seen in the Supreme Court’s decision in Independent Thought v. Union of India (2017). In this case, the Court examined the marital rape exception in relation to minor wives. It held that sexual intercourse with a wife between fifteen and eighteen years of age would amount to rape, even though the law generally protects husbands. While the ruling did not extend criminal liability to cases involving adult wives, it clearly weakened the legal basis of the exception. The Supreme Court stressed that marriage cannot be used to deny a minor girl her fundamental rights under Articles 14, 15, and 21 of the Constitution. This judgment is often viewed as an early indication that the marital rape exception is incompatible with constitutional principles of equality and personal liberty.

The constitutional challenge to the marital rape exception was taken further in RIT Foundation v. Union of India (2022) before the Delhi High Court. This case directly questioned whether Exception 2 to Section 375 could survive constitutional scrutiny. After detailed arguments, the Court delivered a divided judgment. Justice Rajiv Shakdher ruled that the exception was unconstitutional, as it violated the right to equality and the right to life and dignity. In contrast, Justice C. Hari Shankar held that such a major change should be left to the legislature. Due to this split decision, the issue was referred to the Supreme Court. Even though the High Court did not give a final answer, the case clearly showed that the judiciary is deeply divided and increasingly uncomfortable with the continued existence of the marital rape exception.

Apart from constitutional cases, High Courts have also addressed sexual violence within marriage through other legal routes. In X v. State of Kerala (2021), the Kerala High Court stated that a husband has no right to force sexual relations on his wife. The Court recognised such behaviour as “cruelty” under matrimonial law and held that it could justify the grant of divorce. The judgment clearly affirmed that marriage does not give a husband control over his wife’s body. Although the case was decided under family law and not criminal law, its reasoning strongly supports the idea that consent remains essential within marriage.

Courts have also provided protection to married women under the Protection of Women from Domestic Violence Act, 2005. In Abhijit Bhikaseth Auti v. State of Maharashtra (2009), the Bombay High Court clarified that forced sexual intercourse by a husband amounts to sexual abuse under the Act. This interpretation allows women to seek civil remedies such as protection orders, residence rights, and financial relief. While these remedies do not result in criminal punishment for rape, they show the judiciary’s effort to recognise and address marital sexual violence within the existing legal framework.

Despite these judicial developments, the legal position remains largely unchanged. Marital rape is still not recognised as a criminal offence when the wife is above eighteen years of age. Courts may criticise the exception, rely on other laws to provide limited relief, or express concern about its constitutionality, but they cannot convict a husband for rape unless the law is amended or the exception is struck down. This continuing conflict between constitutional ideals and statutory law defines the present status quo and leaves married women without complete protection under criminal law against sexual violence within marriage.

The Supreme Court Battle of 2024–2025: The Core Conflict

During 2024–2025, the Supreme Court of India became the focal point of a crucial legal debate: whether marriage can protect a person from criminal responsibility for sexual violence. The question before the Court goes to the heart of criminal law and constitutional values. It asks whether a woman’s consent, dignity, and bodily autonomy can be ignored simply because she is married. This dispute is not limited to one legal provision; it reflects India’s larger commitment to equality, gender justice, and the principle that no one is beyond the reach of the law.

The Constitutional Clash

The hearings before the Supreme Court during this period represent one of the most important constitutional challenges in recent years. The issue revolves around the legal protection given to husbands under Section 375 of the Indian Penal Code, now reflected in Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita. This provision prevents a husband from being prosecuted for rape if his wife is above eighteen years of age.

Under the leadership of Chief Justice D.Y. Chandrachud, the Supreme Court agreed to examine whether this exemption is compatible with the Constitution. The judges are considering whether marriage can legally remove the requirement of consent and whether such immunity violates the fundamental rights to equality, personal liberty, and dignity guaranteed under Articles 14 and 21 of the Constitution.

Examining the Law Itself

A major aspect of the Court’s intervention lies in its close examination of the marital rape exception. The petitioners argue that the provision treats married women differently by denying them protection against sexual violence solely because of their marital status. According to this view, the law creates an unreasonable classification that has no constitutional justification. The Supreme Court must now decide whether husbands should continue to enjoy legal protection or whether non-consensual sex within marriage should fall under the general offence of rape.

This scrutiny is not merely about interpreting statutory language. It challenges the basic legal assumption that consent can be permanently presumed through marriage. The Court is being asked to decide whether consent must remain a continuing and voluntary choice, even within marital relationships.

Marriage and Bodily Autonomy

The central conflict in this case is the tension between marital status and individual autonomy. Those supporting criminalisation argue that marriage does not take away a woman’s right over her own body. They maintain that married women deserve the same legal protection against sexual assault as unmarried women. In their view, the existing exception reinforces inequality by indirectly allowing husbands to engage in forced sexual acts without criminal consequences, thereby violating women’s dignity and bodily autonomy.

The Government’s Stand

The Union Government has taken a cautious position before the Court. It has argued that making marital rape a criminal offence could affect the institution of marriage and may have serious social consequences. While recognising that forced sexual acts within marriage are harmful, the government has urged the Court to leave the matter to Parliament. It has also raised concerns regarding misuse of criminal law and difficulties in proving such offences. Through these arguments, the government has emphasised the need to balance individual rights with social realities and legislative authority.

Consent, Dignity, and Constitutional Principles

The case has brought forward a wider constitutional debate between personal liberty and traditional social ideas. On one side is the argument that removing the marital rape exception would reinforce the principle that consent is essential in every relationship and that the law must protect all individuals equally. On the other side are concerns related to social impact, misuse of law, and the perceived sensitivity of marital relationships. This clash between constitutional values and social caution explains the significance of the Supreme Court’s involvement.

Why 2025 Matters

The Supreme Court’s decision in this matter will have lasting consequences for Indian criminal law and women’s rights. This case is not simply about keeping or removing a legal exception; it is about defining the legal meaning of consent, marriage, and dignity in a constitutional democracy. If the exception is struck down, it would signal that constitutional rights take priority over outdated legal assumptions. If it is upheld, it would mean that unequal treatment within criminal law continues.

Regardless of the final outcome, the proceedings themselves have already marked 2025 as a historic moment. The case stands as a defining chapter in India’s ongoing struggle to align criminal law with constitutional promises of equality, autonomy, and justice.

Peripheral but Related Judgments Supporting the Importance of Consent

Consent as a Constitutional Foundation

Although the Indian Penal Code and the Bharatiya Nyaya Sanhita still contain the marital rape exception, Indian courts have delivered several important judgments that strongly support the ideas of consent, bodily autonomy, and dignity. These cases do not deal with marital rape directly, but they play a crucial role in shaping constitutional thinking on sexual autonomy and personal liberty. Together, they strengthen the argument that marriage cannot take away an individual’s right to give or refuse consent.

Navtej Singh Johar: Dignity and Sexual Autonomy

In Navtej Singh Johar v. Union of India (2018), the Supreme Court struck down the colonial-era law criminalising consensual same-sex relations. The Court clearly held that dignity, privacy, and consent are central to an individual’s sexual autonomy. Although this case did not involve marital rape, its reasoning is highly relevant. The judgment made it clear that the State has no authority to interfere with the private and consensual sexual choices of adults. By recognising sexual autonomy as an essential part of personal liberty under Article 21, the Court reinforced the idea that consent is fundamental and cannot be ignored simply because of social or legal relationships such as marriage.

Joseph Shine: Marriage Does Not Remove Autonomy

The Supreme Court further strengthened this constitutional approach in Joseph Shine v. Union of India (2019), where it struck down the offence of adultery. In this judgment, the Court rejected the notion that a woman is the property of her husband or that marriage limits a person’s constitutional rights. The Court clearly stated that marriage does not take away an individual’s right to dignity, bodily integrity, and personal autonomy. This decision is significant because it confirms that marital status cannot be used as a reason to deny legal protection to an individual’s consent, thereby supporting the broader movement toward gender equality within marriage.

High Court Decisions Strengthening the Argument

High Courts across the country have also played an important role in developing this understanding of consent within marriage. In RIT Foundation v. Union of India, the Delhi High Court examined the constitutionality of the marital rape exception and acknowledged the need for legislative reform, even though the matter was eventually referred to the Supreme Court.

Similarly, the Gujarat High Court in Nimesh Bharatbhai Desai described marital rape as a “disgraceful offence” and emphasised that forcing sexual relations within marriage is inconsistent with dignity and justice. These observations show that courts at the regional level are increasingly recognising that consent is essential, even within marital relationships.

The Broader Constitutional Direction

When read together, these Supreme Court and High Court decisions reveal a clear constitutional direction. Even though marital rape has not yet been criminalised under the IPC or BNS, the principles laid down in these judgments strongly support the protection of consent, dignity, and bodily autonomy. They provide a solid constitutional basis for challenging the marital rape exception and make it evident that Indian law is gradually moving toward recognising that marriage cannot override an individual’s right to consent.

Social and Policy Context

Patriarchal Roots of the Law

The marital rape exception is often criticised as a product of deep-rooted patriarchal thinking. By treating a wife as belonging to her husband rather than as an independent person, the law reinforces gender inequality and outdated social attitudes. Instead of recognising women as individuals with equal rights, the exception reflects the belief that marriage gives a husband complete sexual control over his wife. Several legal commentators and newspapers, including The Indian Express, have pointed out that such thinking weakens a woman’s dignity and ignores her right to bodily autonomy.

Limited Protection under the Domestic Violence Act

The Protection of Women from Domestic Violence Act, 2005 does provide some relief to women facing sexual abuse within marriage. It allows courts to grant protection orders, maintenance, residence rights, and other civil remedies. However, the Act does not treat marital rape as a criminal offence. As a result, while a woman may receive temporary protection, the law does not clearly state that forced sexual acts within marriage are crimes. Many critics argue that relying only on civil remedies sends a weak message and fails to recognise that sexual violence is wrong regardless of whether it occurs inside or outside marriage.

Policy Views: Law Commission and the J.S. Verma Committee

Several policy-making bodies have also recognised the problems with the marital rape exception. The Law Commission of India, in its 2000 report, acknowledged that the exception was flawed and required reconsideration. Later, after the 2012 Nirbhaya case, the Justice J.S. Verma Committee strongly recommended removing the marital rape exception altogether. The Committee made it clear that criminal law must protect a woman’s bodily integrity and dignity, and that social traditions or marital relationships cannot be used to excuse sexual violence. These recommendations reflect a growing understanding that the law must change to protect women more effectively.

Aligning the Law with Social Reality

Taken together, social criticism and policy recommendations highlight a serious gap between the law and the everyday experiences of women. They show that while constitutional values promise equality, dignity, and personal liberty, the marital rape exception continues to deny these protections to married women. This disconnect underlines the urgent need for legal reform that reflects constitutional principles and addresses the real harm caused by sexual violence within marriage.

Counterarguments and the Government’s Position

Claim 1: Criminalising Marital Rape Will Harm Marriage

One of the most common arguments against criminalising marital rape is that it will disturb the institution of marriage. Government affidavits filed before the Supreme Court, along with views expressed in newspapers such as The Times of India, have suggested that allowing husbands to be prosecuted for non-consensual sexual acts may damage marital relationships and destroy harmony between spouses. This argument is based on the belief that sexual relations are an automatic part of marriage and that criminal law should not interfere in private marital matters. It assumes that criminalisation would create fear, mistrust, and conflict within marriages.

Why the Argument of “Marital Harmony” Does Not Hold

This reasoning does not survive constitutional scrutiny. Fundamental rights such as equality, personal liberty, and dignity under Articles 14 and 21 of the Constitution cannot be taken away simply because a person is married. Marriage does not give one spouse the right to violate the bodily integrity of the other. Allowing marital status to act as a defence for sexual violence goes against the basic principle that all individuals are equal before the law. The claim that protecting women from sexual violence will harm marriage is therefore legally weak and is rooted more in patriarchal thinking than in constitutional values.

Claim 2: Existing Legal Remedies Are Enough

Another argument often raised is that criminalising marital rape is unnecessary because other legal remedies already exist. Supporters of this view point to the Protection of Women from Domestic Violence Act, 2005, and to civil remedies available in divorce proceedings, such as claims of cruelty. According to this argument, these legal options allow women to seek protection, financial support, or separation without introducing criminal punishment into marital relationships.

Why Civil Remedies Are Not a Substitute for Criminal Law

This argument is also deeply flawed. The Domestic Violence Act mainly provides civil relief, such as protection orders or maintenance, but it does not treat forced sexual acts within marriage as a criminal offence. Civil remedies do not punish the act of sexual violence itself. They also fail to clearly state that rape is a serious crime regardless of the relationship between the victim and the accused. Without criminal liability, the law sends a weak message and does not offer full justice to victims. Criminal law plays a crucial role in recognising the seriousness of sexual violence and in protecting bodily autonomy and consent.

Lessons from Other Countries

International legal experience further weakens the arguments against criminalisation. In countries like the United Kingdom, marital rape has been recognised as a crime under the Criminal Justice and Public Order Act, 1994. Similarly, in Canada, sexual assault within marriage is prosecuted under general criminal laws. These countries have shown that criminalising marital rape does not destroy marriages or social stability. Instead, it strengthens accountability, equality, and protection for victims. Comparative law therefore clearly supports criminalisation and shows that fears of social disruption are largely exaggerated.

Constitutional Values: Dignity and Autonomy

The Supreme Court of India has consistently recognised sexual autonomy as an essential part of personal liberty. Judgments such as Navtej Singh Johar v. Union of India and Joseph Shine v. Union of India has made it clear that marriage cannot cancel consent or bodily autonomy. These principles apply directly to the issue of marital rape. When constitutional rights are involved, the State cannot justify inaction simply because the violence occurs within marriage.

The Case for Criminalisation

In conclusion, the government’s arguments against criminalising marital rape—whether based on concerns about marital harmony or reliance on civil remedies—fail both legally and practically. Civil laws cannot replace criminal accountability, and marriage cannot be used as an excuse to deny fundamental rights. International practice shows that criminalisation is compatible with social stability and justice. Continuing the marital rape exception would only reinforce gender-based violence and deny women equal protection under the law. Legal reform is therefore not only necessary but constitutionally required.

What Lies Ahead — The Legal Position in 2025

As 2025 moves forward, the debate on marital rape continues to be one of the most important and closely followed legal issues in India. The Supreme Court of India is currently hearing several petitions together that challenge the marital rape exception retained in the Bharatiya Nyaya Sanhita (BNS). Just like the earlier Section 375 of the IPC, the BNS still protects husbands from being prosecuted for rape if the wife is an adult. Those who have approached the Court argue that this exception violates basic constitutional rights such as equality, dignity, personal liberty, and bodily autonomy. Although the Court has not yet delivered a final judgment, the detailed hearings show that the issue will remain central to India’s legal discussion throughout 2025 and possibly even into 2026.

Legal scholars and commentators have observed that there is a growing constitutional shift toward recognising consent within marriage as a legal necessity. Recent academic and policy-based research has pointed out serious gaps in Indian law regarding marital rape. These studies suggest that the marital rape exception under the BNS may be unconstitutional, as it denies married women the same legal protection available to others. This has strengthened the demand for reform, either through a court ruling or through changes made by Parliament.

At the Supreme Court level, the hearings show both urgency and complexity. The judges are carefully examining arguments presented by petitioners, legal experts, and the central government. While the Union Government has accepted that forced sexual acts within marriage are wrong and should be addressed by law, it has argued that such acts should not be classified as “rape.” According to the government, using this label could have serious social and legal consequences and may affect the institution of marriage. This position reflects the tension between constitutional rights and concerns about social impact.

Many legal observers believe that because of the seriousness of the constitutional questions involved, a final decision may not come before the end of 2025. Some analysts think the Court may wait for clearer legislative action or wider consultation before giving its verdict, which could delay the judgment until early 2026. Others believe that the Court may strike down the exception purely on constitutional grounds, ending the long-standing legal immunity enjoyed by husbands. There is also the possibility of a middle path, where the Court limits or “reads down” the exception while leaving it to Parliament to frame detailed laws, safeguards, and procedures.

Alongside judicial developments, there has also been movement in Parliament. In December 2025, Congress MP Shashi Tharoor introduced a private member’s bill in the Lok Sabha seeking to criminalise marital rape. The bill supports an “only yes means yes” approach to consent, which focuses on clear and active agreement rather than mere absence of refusal. This idea reflects modern approaches to sexual offence laws followed in many other countries.

Although private member’s bills rarely become law in India, this proposal has sparked significant public debate. Discussions on social media, legal platforms, and public forums show growing support for stronger consent laws and criticism of the current legal gap. Whether Parliament will seriously take up this proposal or whether other lawmakers will introduce similar bills with broader support remains uncertain in 2025.

In the coming year, two legal paths are likely to develop side by side. First, the judicial route, where the Supreme Court’s decision could reshape how constitutional rights related to consent and marriage are understood. Second, the legislative route, where Parliament may introduce detailed laws to formally criminalise marital rape. These two routes can work together. A strong Supreme Court ruling could guide and encourage Parliament to frame clear laws, rules of evidence, and safeguards against misuse.

International experience also supports reform. Countries such as the United Kingdom and Canada have already recognised marital rape as a criminal offence. In the UK, the Criminal Justice and Public Order Act, 1994 removed marital immunity, while in Canada, sexual assault within marriage is treated like any other sexual offence. These examples show that criminalising marital rape does not weaken society or marriage. Instead, it strengthens equality, accountability, and respect for personal autonomy. They also offer practical models that India can learn from.

Overall, the legal situation in 2025 shows active court involvement, growing political discussion, and increasing public awareness. Whether change comes through a Supreme Court judgment, parliamentary legislation, or a combination of both, the next phase is likely to redefine how Indian law views consent, marriage, and personal freedom in a lasting way.

Conclusion

The debate on marital rape in India cannot be decided by emotions or moral arguments alone. It requires clear legal thinking and a practical approach. Legal scholars and commentators largely agree that the present law is outdated and raises serious constitutional concerns. The marital rape exception under Section 375 of the IPC, and its continuation under the Bharatiya Nyaya Sanhita (BNS), is a colonial-era rule based on old patriarchal ideas. It does not reflect modern constitutional values such as equality, dignity, and personal freedom. By protecting husbands from criminal liability only because of marriage, the law violates Articles 14 and 21 of the Constitution. This problem is not merely theoretical—it creates a real gap in protection and leaves married women legally exposed to sexual violence within their own homes.

Judicial developments over the last decade show a forward-looking but uneven approach. The Supreme Court, in cases like Navtej Singh Johar v. Union of India and Joseph Shine v. Union of India, has clearly stated that consent and bodily autonomy are essential rights, even within marriage. Several High Courts, including those in Delhi and Gujarat, have openly criticised the marital rape exception and described it as inconsistent with gender justice and human dignity. However, because there is no final and binding ruling on the issue, these decisions remain fragmented. At present, the Supreme Court is the only institution capable of bringing uniform and decisive reform. The ongoing hearings in 2024–2025 highlight both the Court’s power to bring meaningful change and the delays caused by social, legal, and evidentiary concerns. This lack of consistency makes it clear that a strong and authoritative ruling is urgently needed to ensure equal legal protection for all married women.

From a policy perspective, the path forward is straightforward. Marital rape must be criminalised, but this must be done carefully and clearly. The law should clearly define consent, lay down fair rules for evidence, and include safeguards to prevent misuse. Criminalisation should not be symbolic; it must be supported by practical legal standards, including recognition of affirmative consent. Experiences from countries such as the United Kingdom and Canada show that criminalising marital rape does not weaken marriage. Instead, it strengthens respect for equality, accountability, and personal autonomy. A strong legal framework must also address challenges like proof and enforcement through proper guidelines, police training, and judicial awareness.

Strategically, reform requires cooperation between the judiciary and the legislature. Parliament has the power to enact detailed laws, while the Supreme Court can set clear constitutional limits that guide such legislation. When courts affirm fundamental rights and lawmakers translate those principles into precise legal rules, reform becomes both effective and sustainable. This combined approach moves the discussion away from emotional debates and places it firmly within constitutional law and sound policy.

In conclusion, India’s current legal position on marital rape is outdated and inconsistent with constitutional values of dignity, equality, and bodily autonomy. The Supreme Court’s present review offers the strongest opportunity for immediate change, while legislative action is essential to formally criminalise marital rape with clear definitions and safeguards. Addressing marital rape through this careful and tactical legal approach allows India to protect women’s rights, strengthen constitutional principles, and ensure justice within marriage rather than allowing outdated laws to continue causing harm.

BIBLIOGRAPHY

Constitutional & Statutory Materials

1. The Constitution of India (1950).
2. Indian Penal Code, No. 45 of 1860.
3. Bharatiya Nyaya Sanhita, 2023.
4. Protection of Women from Domestic Violence Act, No. 43 of 2005.

Judicial Decisions (India)

1. Independent Thought v. Union of India, (2017) 10 SCC 800 (India).
2. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India).
3. Joseph Shine v. Union of India, (2019) 3 SCC 39 (India).
4. RIT Foundation v. Union of India, 2022 SCC OnLine Del 2668 (India).
5. X v. State of Kerala, 2021 SCC OnLine Ker 3742 (India).
6. Abhijit Bhikaseth Auti v. State of Maharashtra, 2009 SCC OnLine Bom 889 (India).
7. Empress v. Hari Mohan Maiti (Phulmoni Dasi Case), (1890) ILR 17 Cal 49 (India).

III. Law Commission & Committee Reports

1. Law Commission of India, 172nd Report on Review of Rape Laws (2000).
2. Justice J.S. Verma Committee, Report on Amendments to Criminal Law (2013).

Foreign & Comparative Law Sources

1. Criminal Justice and Public Order Act, 1994, c. 33 (U.K.).
2. R v. R, [1992] 1 A.C. 599 (H.L.) (U.K.).
3. Criminal Code, R.S.C. 1985, c. C-46 (Can.).

Scholarly Articles & Commentaries

1. Flavia Agnes, Marital Rape: Implied Consent and the Indian Constitution, Economic & Political Weekly (2015).
2. Mrinal Satish, Criminalising Marital Rape: A Constitutional Perspective, National Law School of India Review (2018).
3. Pratiksha Baxi, Sexual Violence and the Law in India, Oxford University Press (2014).

Newspapers & Contemporary Commentary

1. Indian Express, Explained: Why India Still Does Not Criminalise Marital Rape (various editions).
2. The Hindu, Marital Rape Exception and Constitutional Morality (editorials).
3. Times of India, Government’s Stand on Marital Rape Before Supreme Court (news reports).