CRIMINALISATION OF MARITAL RAPE IN INDIA

India – a country with constitutional and moral principles rooted deeply within – is shockingly “one of the 34 countries1” in the world to retain a discriminatory and grievous crime against a woman in its legal framework – marital rape. According to the Indian Penal Code, 1860, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 

This legal shield grants protection to husbands, directly violating numerous rights of Indian married women. In India, 31.2% of married women between the ages 18-49 have “experienced physical and/or sexual violence.2” Marital rape is any non-consensual vaginal, anal or oral penetration of the body of another person where the penetration is of a sexual nature, by a spouse or by a former or current partner.3 This data is based only on reported cases, as many women don’t report sexual abuse against their husbands due to societal and psychological factors. This article argues for the urgent criminalisation of marital rape. 

Absence of Legal Recourse 

The current legal contexts do not allow for criminal proceedings against husbands who rape their wives, but provisions exist for men who rape women who they are not married to – imprisonment “for a term not less than 10 years, which may be extendable to life in prison.4” The question is, why are there no remedies available for married women to take action against their rapists? Does marriage automatically give consent to husbands on behalf of their wives, who we consider and worship as Goddesses in India? Are women not allowed to have a say as to when they wish to have sexual intercourse after marriage? 

Violation of Fundamental Rights: Articles 14 and 21 

As a nation we have made significant progress in terms of personal liberty, equality and right to life. It is one of the basic structures of the Constitution of India. However, this exception creates a class of women (married) who are denied legal protection against rape, that is afforded to another class of women (unmarried, or who are married and want to take action against a person who is not her husband). This division is a clear violation of the right to equality before law5, one of the Fundamental Rights, ought to be granted to every Indian citizen. 

Along with the creation of this class division, married women don’t enjoy bodily autonomy in many households. The concept of bodily autonomy (where individuals have “the right to control what does and does not happen to their bodies6”) is deeply rooted in the principles of personal liberty, dignity and privacy – all of which are protected under Article 21 of our Constitution. The legal exception that results in the non criminalisation of marital rape constitutes a direct contravention of these core principles and laws. Married women have the right to bodily autonomy and to be treated equally under the law. In Suchita Srivastava v. Chandigarh Administration, the Supreme Court ruled that respecting autonomy is paramount. In K.S. Puttaswamy v. UOI (2017), the judgement linked privacy directly to bodily autonomy and the right to make personal choices regarding one’s body, health and lifestyle. These landmark cases already form the basis of challenging these discriminatory laws. 

The ignorance of these violations is a direct discrimination against married women, considering how frequently they are assaulted and raped. Not only is the dignity of their body stripped off them, they are also prone to Intimate Partner Violence Trauma, which in many cases is a direct consequence of marital rape. IPV has been directly linked to mental health disorders like depression, anxiety, post traumatic stress disorder, and suicidal ideation, even attempts.7In many households, women are expected to look and care for the whole family – from handing over a toothbrush to preparing three course meals, three times a day for their entire families, without any reciprocation. This isolates a woman from her family, and makes her hesitant to open up to someone. Even if a woman takes action against her husband, the society and family shuns her and turns to blame her instead, as marriage is looked at as sacrosanct in the nation. 

The purity of marriage, in question, lies with the duties and responsibilities that the partners have on each other, not with taking advantage of one and silencing them. Marriage is about respect, truth and dignity; not rape. 

Global Precedent and International Obligations 

There are multiple countries that have criminalised rape and have taken steps to ensure women that it is okay to reach out for help. England did this in 1991, wherein The House of Lords in R v R rejected the archaic concept that marriage conferred ownership over a woman8, thus rejecting the Hale Doctrine, under which British Jurist Sir Matthew Hale said, “but the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”9 Even South Korea has criminalised marital rape by stating that sexual acts that take place under duress or threat of violence should be punished, including between married couples10. All 50 States of The USA have criminalised marital rape, dismantling the notion of ‘implied consent’ that comes with marriage. By criminalising marital rape, these countries have taken a step to not encourage violence towards women, which is otherwise even socially acceptable in many countries, including India. 

India has also ratified multiple international covenants, which put on the State a couple of implications. Having ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1993, India is bound to take action against the practice of marital rape, as the CEDAW Committee has explicitly stated that “Traditional attitudes by which women are regarded as subordinate to men”11 also “contribute to the propagation of pornography and the depiction and other commercial exploitation of women as sexual objects, rather than as individuals. This in turn contributes to gender-based violence.”12 This highlights the grievous nature of the crime taking place against women on a daily basis, and how India needs to take action urgently. 

India is also a signatory to the International Covenant on Civil and Political Rights (ICCPR). It recognises rights that “derive from the inherent dignity of the human person”13. Article 26 of the ICCPR states that, “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.” The exception of marital rape in the Indian Penal Code, 1860 is a grave violation of this obligation, due to the discrimination based on marital status. 

Legal and Social Reform 

The way forward in the Indian context includes the removal of Exception 2 in the Indian Penal Code, 1860, along with making the definition of rape marriage-neutral. This ensures that consent remains both inside and outside marriage – reinforcing the idea of bodily autonomy, consent, privacy and liberty. It also sends a strong message that consent cannot be presumed through marriage. The Supreme Court has expanded constitutional rights in multiple cases, wherein it must also take into consideration Articles 14 and 21 in terms of bodily autonomy and the rights of women within marriage, while also reinforcing the ideals of respect among partners. 

Legal change alone isn’t enough. Societal attitudes regarding the subject must evolve too. Comprehensive sex education and gender sensitivity programmes should be conducted in  schools, workplaces, housing societies etc. There must also be creation of safe and confidential mechanisms for women to report marital sexual violence, along with counselling and legal aid. Criminalisation of marital rape would demonstrate India’s commitment to gender equality and human rights, not only domestically but also globally. The masses, along with influential personalities, should be educated that this criminalisation does not aim to ‘break marriages’ or the purity of it, but to strengthen the element of consent, respect and equality in it. Marriage is not a green signal for rape or the ownership of a woman’s body. The inalienable right to say ‘no’ should travel with a woman wherever she goes – even into marriage.

Reference(S):

1 Drishti IAS, ‘Marital Rape in India’ (29 Dec 2022)

2 National Family Health Service (NFHS-5) 2019-21. 

3 European Institute of Gender Equality, ‘marital rape’ (2016) <https://eige.europa.eu/publications-resources/thesaurus/terms/1397?language_content_entity=en> accessed 21 Oct 2025. 

4 The Indian Penal Code, 1860 s.376 (1). 

5 The Constitution of India, 1950 a.14.

6 Positive Women’s Network, ‘Bodily Autonomy: A Framework to Guide Our Future’ <https://www.pwn-usa.org/bodily-autonomy-framework/> accessed 22 Oct 2025. 

7 Sathe, Harshal S.; Maliye, Chetna H.1; Varma, Poonam S.2; Garg, Bishan S.1; Shahare, Kalyani3; Rathod, Roshan4. Intimate Partner Violence and Mental Health Problems in Married Women in Rural Central India: A Community-based Cross-sectional Study. Indian Journal of Community Medicine. 

8 Rithika Panicker and Parav Patel, ‘A Study of Marital Rape Laws in Different Countries’ <https://thelawbrigade.com/wp-content/uploads/2019/05/24.pdf> accessed 22 Oct 2025.

9 Note, The Marital Rape Exemption: Evolution to Extinction, 43 Clev. St. L. Rev. 351 (1995) accessed 22 oct 2025.

10 Rithika Panicker and Parav Patel, ‘A Study of Marital Rape Laws in Different Countries’ <https://thelawbrigade.com/wp-content/uploads/2019/05/24.pdf> accessed 22 Oct 2025. 

11 UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendation No. 19: Violence against women, 1992,  <https://www.refworld.org/legal/resolution/cedaw/1992/en/96542> accessed 22 Oct 2025.

12 UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendation No. 19: Violence against women, 1992,  <https://www.refworld.org/legal/resolution/cedaw/1992/en/96542> accessed 22 Oct 2025. 13 International Covenant on Civil and Political Rights, Preamble.