Criminalisation of Marital Rape in India: A Legal and Social Perspective

Introduction

Rape is considered one of the most heinous crimes in society. Rape affects human dignity at the physical, emotional, and psychological levels for a long period of time. The Indian law protects women from rape by giving one of the harshest punishments to the offender; however, the issue lies with marital rape, which still comes within the exception of rape, not only in India but in many other countries, even today. According to the NCRB’s 2022 report, overall crimes against women increased by 4%, reaching 445,256 cases. Among these, 31.4% were classified as cruelty by husbands or their relatives, yet forced sex within marriage remains legally permitted. Marital Rape is an act of non-consensual sex perpetrated by a husband on his wife within marriage. Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023[1] (previously section 375 of IPC) specifically protects the husband from being prosecuted for committing rape against his wife. Exception 2 states- “Sexual intercourse or sexual acts by a man with his wife, the wife not being under eighteen years of age, is not rape.”

This law has its roots in the colonial period, when marriage implied permanent and irrevocable consent to sex by the spouse. According to the National Family Health Survey (2019–2021), at least 6% of married Indian women reported sexual violence by their husbands,[2] yet marital rape remains grossly underreported. This blog explores the legal and fundamental issues surrounding marital rape in India, compares it with other countries that have criminalized marital rape, and discusses the role of the judiciary in bridging legislative gaps in India.

Historical Legacy and Legal Framework  

India, along with 36 other countries, does not recognize marital rape as a crime and gives immunity to husbands from being prosecuted for the same. One of the main reasons why marital rape is still not criminalized is rooted in the 17th-century English common law when Sir Matthew Hale declared the legal principle that marriage itself implies the irrevocable consent by wife for sex and the husband cannot be punished for marital rape.[3] This implies that all marriages came with absolute consent from both parties. This idea was codified in the Indian Penal Code (sec. 375, Exception 2) in 1860 and carried forward into the Bharatiya Nyaya Sanhita (Sec. 63). These laws were also affected by the patriarchal society, where men were considered superior beings with full control over their wives. For decades, this exception has denied married women the same legal protection that unmarried women enjoy. 

Violation of Fundamental Rights

The non-criminalization of marital rape arguably also violates the Fundamental Rights given under the Indian Constitution, which are as follows:

Article 14[4] provides for Equality Before the Law, which means that all persons are equal before the law. However, the non-criminalization of marital rape treats a class of women (married women) unequally, as they are denied the legal protection accorded to others.

Article 15[5], which prohibits discrimination, has a long-standing exception that perpetuates gender-based discrimination by denying married women the right to seek legal protection against marital rape.

Article 21[6], which grants the right to life and personal liberty to everyone, also includes the right to dignity, bodily integrity, and sexual autonomy, as stated by the Supreme Court in the case of Suchita Srivastava v. Chandigarh Administration (2009)[7] that sexual and reproductive autonomy falls under the domain of Article 21 of the Constitution. Therefore, the exception violates the Fundamental Rights of a married woman.

Understanding Consent in Marriage

Consent is the cornerstone of all sexual relationships. Marriage cannot and should not imply a perpetual consent. A wife’s right to say “no” is as valid as anyone else’s right. To argue otherwise not only dehumanizes women but also trivializes the institution of marriage by turning it into a license for sexual violence.

Courts worldwide have consistently upheld that consent is dynamic, specific, and can be withdrawn at any time. India’s refusal to extend this principle to marriage perpetuates outdated patriarchal notions.

Social and Cultural Barriers to Recognising Marital Rape

A major reason for the resistance against criminalizing marital rape in India lies in deep-rooted social and cultural beliefs. Marriage is often seen as a sacred, inviolable institution in which the wife is expected to fulfil her husband’s sexual needs. Patriarchal mindsets silence women, with family and community pressure discouraging survivors from speaking out about their experiences.

There is also fear of stigma, victim blaming, and being ostracized. Many women depend on their husbands financially, making it difficult to seek justice. These barriers result in underreporting, lack of awareness, and acceptance of marital rape as a “private matter” rather than a crime.

Judicial Activism: Stepping into the Legislative Vacuum

Despite decades of advocacy, public debate, and recommendations from law reform bodies such as the Justice Verma Committee (2013)[8], the Indian Parliament still refuses to recognize the need to amend laws to criminalize marital rape. The government argues that cultural sensitivities, fear of misuse, and the sanctity of marriage are reasons for not criminalizing marital rape in Pakistan. Therefore, the only body left to protect the women’s rights is the Judiciary, which has given some judgments on the matter, which are-

• Independent Thought v. Union of India (2017)[9]

This landmark case involved a challenge to Exception 2 of Section 375 of the IPC, which allowed marital intercourse with a wife above 15 years of age to be non-criminalized. The petition argued that this provision conflicted with child protection laws, including the Prohibition of Child Marriage Act, 2006, and the Protection of Children from Sexual Offences (POCSO) Act, 2012, both of which set the age of consent at eighteen. The Supreme Court ruled that sexual intercourse with a wife under 18 years of age would constitute rape, regardless of marital status. The Court reasoned that the exception was arbitrary, discriminatory, and violative of the right to equality and dignity under Articles 14 and 21 of the Constitution. This judgment was significant not only because it closed the gap between child protection and marriage laws, but also because it subtly questioned the broader principle of irrevocable marital consent. This set a precedent that the law must adapt to protect vulnerable groups, even within marriage.

• RIT Foundation v. Union of India (Delhi High Court, 2022)[10]

This case directly addressed the constitutionality of the exception for marital rape. Numerous NGOs, activists, and individuals petitioned the court, arguing that the exception violated women’s fundamental rights. In a historic but divided judgment, Justice Rajiv Shakdher held the exception unconstitutional, emphasizing that marriage does not take away a woman’s right to refuse sex and that the exemption violates Articles 14, 15, and 21. He stressed that criminal law must recognize the individual dignity and autonomy of married women. Conversely, Justice C. Hari Shankar upheld the exception, reasoning that matters of such social significance should be decided by the legislature, not the judiciary. This split verdict created legal uncertainty, and the matter is now pending before the Supreme Court. The case is monumental because it sparked unprecedented public debate, extensive arguments from both sides, and judicial recognition of the tension between tradition and constitutional morality. The Supreme Court’s future ruling on this matter is likely to determine the fate of marital rape laws in India.

These cases highlight the judiciary’s struggle to balance constitutional guarantees with legislative inertia while simultaneously opening doors for greater recognition of women’s rights within marriage.

International Perspectives and Human Rights Standards

Marital rape has been criminalized in over 100 countries, including the USA, the UK, South Africa, and Nepal, through legislation or judicial rulings.

• United Kingdom: The marital rape exemption was abolished in 1992 through R v. [11], and later codified in the Sexual Offences Act 2003[12].
• United States: All 50 states now criminalize marital rape, although penalties vary.
• South Africa: Marital rape was criminalized under the Prevention of Family Violence Act, 1993,[13] with courts recognizing it as a violation of dignity and bodily integrity.
• Nepal: Marital rape has been a criminal offence since 2002[14], reflecting a progressive shift even among South Asian neighbors.

In addition, many countries have recognized women’s rights and protection from rape, even in the domain of marriage, by criminalizing marital rape.

Role of Civil Society and NGOs

Women’s rights groups and NGOs in India have been instrumental in highlighting this issue. Organizations such as the Lawyers Collective and Human Rights Watch have campaigned for reforms.[15] Grassroots movements, survivor testimonials, and public interest litigation have kept the debate alive despite political resistance. Civil society continues to challenge myths about marital rape, educate communities about consent, and provide shelters, counselling, and legal support to survivors.

Challenges in Criminalising Marital Rape

Opponents of criminalizing marital rape often highlight several challenges and argue that maintaining the current exemption is necessary to preserve the balance in family law. One of the most cited reasons for this is the fear of misuse of the law. Critics argue that once a marital rape law is enacted, disgruntled wives might use it as a weapon in matrimonial disputes or divorce proceedings, lodging false cases to harass their husbands, for example. They contend that, unlike stranger rape, where external evidence may exist, the private nature of marriage makes allegations difficult to verify, which could lead to the law being misapplied.

Another argument centers on the sanctity and stability of marriage. Some policymakers believe that recognising marital rape as a crime could undermine the institution of marriage and destabilise families. They suggest that criminalising sexual relations between spouses may turn every marital dispute into a criminal matter, thereby creating mistrust between partners. According to this view, disputes of such an intimate nature should be resolved through counselling, mediation, or family courts rather than criminal prosecution.

There is also a practical concern related to investigations and proof. Because marital intercourse takes place in private, it is difficult to gather forensic or physical evidence to distinguish between consensual and forced sex. Critics argue that without concrete evidence, courts would be forced to rely solely on the wife’s testimony, making husbands vulnerable to wrongful conviction. They pointed out that the absence of injuries or corroboration in many such cases would make objective adjudication almost impossible.

Finally, some argue that criminalizing marital rape could overburden an already stretched criminal justice system. Police and courts may become flooded with complaints, many of which might stem from marital discord rather than genuine sexual assault.

Policy Recommendations

Based on legal analysis, judicial opinions, and global trends, several measures are essential.

• Repeal Exception 2 to Section 63 BNS: The definition of rape should apply uniformly to all women, regardless of their marital status.
• Clear consent  standards:  The law should explicitly state that marriage does not imply perpetual consent.
• Gender-Sensitive Training: Law enforcement and the judiciary should be trained to handle intimate partner sexual violence cases sensitively.
• Support Systems: Establish crisis centers, counselling, and rehabilitation services specifically for survivors of marital rape.
• Public Awareness: Launch campaigns to challenge myths about marital rape and promote an understanding of consent in marriage.

Conclusion

The debate on criminalizing marital rape in India is not merely a legal issue but is deeply tied to social morality, gender equality, and human rights. The marital rape exception reflects outdated legal principles of implied consent and male dominance, which are incompatible with the constitutional guarantees of equality and dignity. Judicial activism has paved the way by questioning this anomaly, but lasting change requires legislative action.

Marriage cannot and should not be used as a shield for violence. By criminalizing marital rape, India affirms that consent is central to all sexual relations, including within marriage. Such reform would not only align Indian law with constitutional morality and global standards but also send a powerful message: every individual, regardless of marital status, has an inviolable right to bodily autonomy and to be treated with dignity.

Bibliography (Bluebook Style)

Cases:

• Independent Thought v. Union of India, (2017) 10 SCC 800 (India).
• RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404 (Del. HC).
• Suchita Srivastava v. Chandigarh Admin. (2009) 9 SCC 1 (India).
• R v. R., [1992] 1 A.C. 599 (H.L.) (appeal taken from Eng.).

 Statutes and Codes:

• Bharatiya Nyaya Sanhita, Act No. 45 of 2023 (India) (enacted Dec. 25, 2023).
• Indian Penal Code, Act No. 45 of 1860 (India).
• Prohibition of Child Marriage Act, Act No. 6 of 2007 (India).
• Protection of Children from Sexual Offences Act, Act No. 32 of 2012 (India).
• Sexual Offences Act 2003, c. 42 (U.K.).
• Prevention of Family Violence Act, 133 of 1993 (S. Afr.). 
• Criminal Law (Sexual Offences and Related Matters) Amendment Act, Act No. 32 of 2007 (S. Afr.).
• Muluki Ain (Eleventh Amendment) Act, 2002 (Nepal).
• Criminal Code, 2017 (Nepal).

Reports and Surveys:

• Law Comm’n of India, No. 172, Report on Review of Rape Laws (2000).
• Committee on Amendments to Criminal Law (Justice J.S. Verma, Chair), Report (Ministry of Home Affairs 2013).
• Nat’l Crime Records Bureau, Crime in India 2022 (2023).
• Int’l Inst. for Population Sciences & ICF, National Family Health Survey (NFHS 5), 2019–21: India (Mumbai, 2022)

[1] Bharatiya Nyaya Sanhita, No. 45 of 2023, Gazette of India (Dec. 25, 2023) (in force July 1, 2024).

[2] National Family Health Survey-5 (2019-21), Ministry of Health and Family Welfare, Government of India.

[3] See Howard Q. Taylor, “Rape and Marriage in the Law,” 11 NUJS L. Rev. 1, 2 (2018); Sir Matthew Hale, History of the Pleas of the Crown (1736).

[4] Constitution of India, arts. 14.

[5] Constitution of India, arts. 15.

[6] Constitution of India, arts. 21.

[7] Suchita Srivastava v. Chandigarh Admin., (2009) 9 SCC 1 (India).

[8] Justice J.S. Verma, Justice Leila Seth & Gopal Subramanium, Report of the Committee on Amendments to Criminal Law (Jan. 23, 2013).

[9] Independent Thought v. Union of India, (2017) 10 SCC 800.

[10] RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404 (Delhi HC, 11 May 2022).

[11] R v. R, [1992] 1 A.C. 599 (H.L.) (appeal taken from Eng.).

[12] Sexual Offences Act, 2003, c. 42 (U.K.).

[13] Prevention of Family Violence Act 133 of 1993 (S. Afr.); Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (S. Afr.).

[14] Muluki Ain (Eleventh Amendment) Act, 2002 (Nepal); Criminal Code, 2017 (Nepal).

[15] Human Rights Watch, Why Not Criminalize Marital Rape in India? (2017); Lawyers Collective, Marital Rape: Myths and Realities (2018).