From Immunity to Accountability: Towards Penalizing Marital Rape in India

Abstract

Marital rape is one of the most controversial questions to be discussed on Indian criminal law jurisprudence. Whereas in the vast majority of the democracies across the world, the crime of non-consensual sexual intercourse within a marriage is recognised, the Indian law is yet to find its way out of the maze in which the crime of non-consensual sexual intercourse within marriage has reformed itself, and thereby continues to enjoy protections under the Exception 2 to Section 375 of the Indian Penal Code, 1860, now reproduced into the Bharatiya Nyaya Sanhita, 2023. Such statutory provision forms an alarming paradox, as the Constitution recognizes equality, dignity, and bodily integrity as the privileges of all citizens, whereas a married woman is left at the risk of being denied these rights in the context of her most personal relationship.

This paper takes a critical look at whether marital rape must be punished in India. It provides the trace of current statutory form, scans constitutional provisions, and analyses the important judicial precedent of Independent Thought v. Union of India and the Delhi High Court’s split verdict in the RIT Foundation v. Union of India, with a view of drawing comparative insights, this article examines how such issues have also been tackled in other jurisdictions and how they have managed to reconcile marital privacy and the third principle of consent.

 The paper points out the major gaps in the Indian legal system, the myths still perpetuated in the society that backs the immunity of marital rape and why the reform is necessary. It also offers positive suggestions to the legislature, the court and the civil bodies in matters relating to developing a gender equal framework to protect both women rights and procedural fairness. The conclusion of the article is that the criminalization of marital rape is not an attempt to unsteady the institution of marriage but rather strengthen the institution on the platform of equality, dignity, and respect which is also the foundation of the Constitution.

Introduction

Marriage is said to be a very holy institution in India, a representation of trust, companionship and mutual respect. Yet this coupling highlights an ugly legal aberration: the matter of husbands being immune to prosecution in their rapes of wives.

 Marital rape or spousal rape is the act of committing sexual intercourse with one of the spouses without his/ her consent. The absence of consent is the main and most important aspect and it is not necessarily a physical violence. Marital rape has been classified as domestication-based violence and sexual abuse.

According to exception 2, of section 375 of the Indian Penal Code (IPC), sexual intercourse by a man with his wife, is not treated as rape so long as the wife is not, under the age of eighteen years. This exemption under the law undermines the position of married women under the criminal law which is otherwise available to unmarried women, and this brings in the question of equality and freedom of choice. The criminal law on rape in India is designed to safeguard and protect the bodily integrity of the women and her right to consent.

 But, as far as marriage is concerned, the law presupposes irreversible consent. This assumption can be seen as the mindset of the colonial period since a wife was regarded as the property of her husband, which nullifies her ability to have independent sexual freedoms. This fiction of law has been harshly criticized with the changing understandings of individual rights, and constitutional morality. Courts have also been made to contend with the matter.

 In Independent Thought v. Union of India (2017), the Supreme Court struck down marital rape immunity for wives between fifteen and eighteen. In RIT Foundation v. Union of India (2022), the Delhi High Court delivered a split verdict on whether marital rape should be criminalised, thereby leaving the question open for the Supreme Court’s final determination.

Legal framework

The modern legal position on marital rape in India is rooted in the colonial state supposition which went as follows: marriage means unconditional consent. This notion has been carried over under Section 375 of the IPC in Exception 2 and this means that a husband cannot be prosecuted of raping his wife as long as she is above 18 years old. The same exemption has been transferred into the 2023 BNS under Section 63 with the age of the wife extended to 18. The exception is contrasted with the provision of other laws protecting women in the state of marriage, including Sections 354, 354A, 498A of the IPC as well as the Protection of Women against Domestic Violence Act of 2005, since all of these do not formally punish sexual violence against a woman when she is married. As much as these laws provide relief means, they do not provide any criminal remedy to non-consensual sex within a marriage. Critics are of the view that the exception infringes on a number of rights. It violates Article 14 (equality before law) since it draws discrimination against married women. It infringes the Article 21 (personal liberty and dignity) since it fails to give them right to control over their bodies. It further contradicts Article 19(1) (a) because sexual autonomy is a component of freedom to express oneself. This fact that the exception persisted in the BNS implies that the issue to be resolved by the legislation has not been restructured yet.

Judicial interpretation

Judicial views on this issue have been distinctly divided.

 In Independent Thought v In Union of India (2017), the Supreme Court ruled that intercourse with a wife aged between 15 and 18 years would stand as rape as it amended the exception with the aim of protection of minors.

 In Hrishikesh Sahoo v. State of Karnataka, the Karnataka High Court distanced itself from marital immunity in cases of brutal sexual violence, hinting that implied consent doesn’t cover abuse.

 In RIT Foundation v. Union of India 2022, the Delhi High Court gave the split decision and reaffirmed the stand. Justice Rajiv Shakdher pleaded the exception undermine the autonomy of married women and being a violation to Article 14, 19(1) (a), and Article 21. Justice Hari Shankar, however, confirmed the exception because it makes the marriage a reasonable classification and there is no right to convict a husband in a rape case.

In May 2025, a case under Section 377 against a husband who had committed what was deemed to be unnatural sex was struck down by the Delhi High Court because the law of India does not recognise marital rape and the fact that express consent cannot be assumed, thereby generalising the exemption of non-consensual oral intercourse.

Critical analysis

The present legislation has various flaws:

1 Obsolete Presumption of Consent: The statement that consent cannot be revoked in marriage is an outdated ideology and ignores the sexual freedom of a married woman.

2 Loopholes in Enforcement: The absence of a criminal charge against marital rape means that victims are left with the option of the civil concerns under Domestic Violence Act 2005, or cruelty laws as mandated under Section 498A- both of which do not always deliver the required justice to victims of sexual assaults.

3 The risk of misuse vs justice denied: The government justifies that criminalisation may attract misuse and unstable marriages. Yet, neglecting the breach puts the victims without fitting protection and strengthens gender inequalities.

4 Judicial Hesitancy: The divided decision in RIT Foundation displays reluctance on the part of the judiciary in striking down any legislation, in particular those swallowing in terms of social institutions such as marriage.

Most countries have risen above this aberration:  Among the countries that criminalise marital rape expressly include: USA, Nepal, and Bhutan amongst many others. These illustrations demonstrate that failing to recognise consent regardless of marital status does not negate marriage, but only protects individual rights within a marriage. The exemption is also contradictory to international standards such as the CEDAW which forbids any gender-based violence.

Recent Development

The Supreme Court is taking interest in petitions which seek to strike down the marital rape exception in the BNS. A PIL was filed by AIDWA, in which a notice is issued in May 2024, saying this is a constitutional challenge and involves Articles 14, 15, 19, and 21 of the Indian Constitution. The bench led by Chief Justice D.Y. Chandrachud has sought the responses of the Centre and considering the question as to whether striking out the exception would amount to judicial overreach.

 Arguments presented by Petitioner concentrate on the way the exception would not give women the right to their bodies and dignity, whereas the Centre claims that the current legislation already protects women and a criminal violation can be an excessive measure. In Parliament, TMC MP Derek O Brien has brought forth a Private Member Bill (Feb 2025) to abolish the exception and saying that marriage should not vitiate consent. The existing legal loophole on the judicial front has been further endorsed by the ruling of the Delhi HC in May 2025, that marital rape is not legally recognised under the laws on unnatural sex as well.

Suggestion

The argument on marital rape in India indicates the friction between the importance of the institution of marriage and the values of the Constitution of equality, dignity, and autonomy. This road ahead has to be well balanced ensuring justice for survivors while preventing potential misuse of the law.

1. Legislative Reform

The first and the most important thing that should be done is the deletion of Exception 2 to Section 375 IPC (which survived under Section 63 of the Bharatiya Nyaya Sanhita, 2023). Marriage does not offer protection to the offence of rape. The law should be clear enough to emphasise consent as important regardless of the marriage status. Meanwhile, Parliament may outline certain procedural protections, e.g. more stringent standards of evidence, corroboration, or special investigative principles with a view to false allegations.

2. Clarity in Marriage Consent

 In Marriage The legislature ought to spell out what consent means in marriage This would stop uncertainties and enable courts to judge whether there was any true consent in any case. Such a statutory statement that “consent cannot be presumed or implied by virtue of marriage” would seal up the gaps in interpretation.

3. Judicial Role

 Albeit, the Supreme Court has a constitutional responsibility to interpret laws, to the best of their ability, in unison with Articles 14 and 21 until a change in the laws happens (legislative reform). The judiciary can read down the exception by degrees through mercy judgments as was the case in Independent Thought (2017). Interim laws may also be put in place to provide safety in cases of extreme sexual violence in matrimony.

4. Civil Society and consciousness

Criminalising is by itself not sufficient in dealing with marital rape unless it is coupled with a social change. Community organizations, NGOs and educational institutions should create awareness, sensitize on gender issues and must publicize that marital rape is not a domestic affair but a matter of public wrong.

Helpline and legal aid centres should be beefed up to assist the people.

5. Comprehensive Approach

 Lastly, the problem has to be approached comprehensively. Reforms within the family counselling, victim supporting and mental health support, as well as the reforms of criminalisation, are required along with this. The law cannot be regarded as the means to undermine the marriages but as the means to reinforce the respect and consent to be a key element of the relations.

Ultimately, the solution should be reflected in treating marital rape as a crime, though precautions and parallel social initiatives should be drafted with an intention to find solutions that would be equitable, fair, and long-term.

Conclusion

Whether marital rape should be criminalized in India or not is not only an issue about the law, but it is rather an index of commitment of the country to constitutional ethics and gender equity. As demonstrated in this paper, the existing legal complex still denies married women the equal protection of the law relegating a colonial notion of the consent in marriage that women are presumed to be consenting to. Through the pronouncements of the courts this anomaly has been reduced but has not been challenged to the extent of declaring the exception invalid. Comparative jurisdictions across the world have appreciated marital rape as a crime as the principle of consent cuts across the marital status. Meanwhile, the issues linked with the abuse of the legislation, practical difficulties of proving the case, and the offense of family life cannot be ignored. These are considerations to take into consideration, nonetheless, they cannot prevail over the principle of bodily autonomy and dignity of women. The answer is not in the perpetuation of immunity, but in coming up with a law that establishes criminality of marital rape and has strong procedural protections. Criminalization should be accompanied by wider social change, though, awareness creation, counselling, systems of support to the victims, and gender sensitisation are important in shifting attitudes that normalise sexual violence in marriage. Demanding marital rape to be treated as a crime is not about destroying marriage; it is about fortifying it to stand on the principles of parity, dignity and mutual consent.

Bibliography / References

Primary Sources

1. Indian Penal Code, 1860, § 375, Exception 2.
2. Bharatiya Nyaya Sanhita, 2023, § 63.
3. Constitution of India, arts. 14, 19, 21.
4. Independent Thought v. Union of India, (2017) 10 SCC 800.
5. RIT Foundation v. Union of India, W.P. (C) No. 284/2015 (Delhi High Court).
6. Joseph Shine v. Union of India, (2019) 3 SCC 39.

Secondary Sources

14. Law Commission of India, 172nd Report on Review of Rape Laws (2000).
15. Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law (2013).
16. Centre for Reproductive Rights, The Criminalization of Marital Rape: International Standards and Comparative Practices (2019).
17. Alok Prasanna Kumar, Marital Rape and the Indian Penal Code: Constitutional & Comparative Perspectives, 54 Econ. & Pol. Weekly 23 (2019).
18. Aparna Chandra, Consent, Marriage and the Indian State, 3 NUJS L. Rev. 281 (2010).
19. Supreme Court to Examine Validity of Marital Rape Exception, The Hindu (May 11, 2022).
20. Marital Rape Debate: Delhi HC Delivers Split Verdict, LiveLaw (May 11, 2022).
21. United Nations Committee on the Elimination of Discrimination Against Women (CEDAW), General Recommendation No. 35 on Gender-Based Violence against Women (2017).