MARITAL RAPE EXCEPTION IN INDIA: CONSTITUTIONAL CHALLENGES AND JUDICIAL DEVELOPMENTS

INTRODUCTION

Recently Mauritius’s parliament has criminalised the marital rape and it proposed to impose strict punishment for such heinous crime. In India parliament and judiciary both are battling whether to abolished the exemption of marital rape or not.

Marital rape is very controversial concept in India. Although it is illegal in almost 150 countries but India is among 37 countries that still remain out of this purview. Marital Rape means committing sexual intercourse forcefully with his spouse. Consent is key of sexual intercourse. If it is missing it  will be consider as rape even though it is with your own wife. But traditionally marital rape is consider no crime at all. It is permitted and legal. It is no wrong in the eyes of society. Husband is permitted to indulge in sexual activity even without her consent forcefully because it is presume that wife’s foremost duty is to please and make her available to her husband at the his wishes. 

In India Marital rape is still not penalise. Section 67 of the Bhartiya Nyaya Sanhita 2023 lays down the law relating marital rape and it clearly state that it only penalise the sexual activity that committed during their separation not before that whether the separation is under any decree or not.

Marital rape exception violates Article 14 and 21 of the constitution of India by denying married woman equal protection of the law and their right to live with dignity. Therefore, it is inconsistent with constitutional guarantees of equality, bodily autonomy, and personal liberty.

Even United Nations urged countries to discontinue marital rape and reforms the legal system as necessaries.

Marriage is consider as social contract where both husband and wife has certain duties and obligation. Wife once enter into marriage she become liable to make herself available whenever her husband desire. Historically there were no laws to penalize the husband to coercing his wife to engage into sexual relations. Because it is consider as implied consent that inherent in marriage.

In common laws it is presume that a wife is under obligation to fulfil his husband demands thus there was no concept as such like marital rape. But when the concept of gender equality started developing common law also started recognizing the conjugal rape.

The 2012 J.S. Verma Committee recommended criminalising conjugal rape and deleting the exception under Section 375 of the Indian Penal Code, 1860. but the parliament reject it by stating that there are already enough remedy available to penalise such acts.

THE EXISTING LEGAL FRAMEWORK

BHARTIYA NYAYA SANHITA 2023

Section 67 of the Bhartiya Nyaya Sanhita 2023 provided the concept of marital rape in different way where the marginal line of the section stated that sexual intercourse by husband upon his wife during separation. It held that “whoever has sexual intercourse with his own wife, who is living separately. Whether under a decree of separation or otherwise, without consent, shall not be less than two years but which may extend to seven year, and shall also be liable to fine”[1].

As already mentioned this section only apply when spouse are at separation but Bhartiya Nyaya Sanhita 2023 through section 85 lays down the concept of cruelty by which a wife can charge her husband for physical cruelty. Cruelty implies as an intentional infliction of physical or mental harm which drives a woman to take away her life or grave injury whether mental or physical. And marital rape came under infliction of physical cruelty. As per section 85 of the act “whoever, being the husband or relatives of the husband subjects such woman to cruelty shall be punished with imprisonment for a term with may extend to three years and shall also be liable to fine”[2].

Cruelty is one of the grounds of fault theory of divorce where one of the spouse are at guilty of matrimonial offence. Under all personal law cruelty is recognised as a ground of divorce. Therefore to institute a suit for divorce on the basis of marital rape one must establish it on the ground of cruelty.

PROTECTION OF WOMAN FROM DOMESTIC VIOLENCE ACT 2005

Although Indian criminal law does not currently recognize marital rape as a punishable offence, the Protection of Women from Domestic Violence Act, 2005 provides civil remedies for victims of sexual abuse within a domestic relationship. The Act treats non-consensual sexual conduct as a form of sexual abuse, allowing an aggrieved woman to seek judicial relief. Such relief may include protection orders, residence orders, monetary compensation, and other appropriate remedies as determined by the court.

CONSTITUTION OF INDIA

Marital rape violate article 14 and 21 of India article 14 guarantee that “The state shall not deny right to equality and equal protection of laws within the territory of India”[3]. But Bhartiya Nyaya Sanhita 2023 which is previously Indian penal code violate Article 14 by differentiating between unmarried woman and married woman. Section 63 fails to create reasonable classification between married woman and unmarried woman. A woman who married and forcefully made to have sex by her husband during her marriage are exempted from enforcing her right against her husband. In Indian criminal system wife are treated as personal property of her husband. Marriage is contract once she enter into this she loses her right to claim equality against forceful sexual activity by her husband.

Section 63 of Bhartiya Nyaya Sanhita 2023 also violate Article 21 of the constitution of India which provide right to life and liberty. Article 21 provides that “No person shall be denied to his life and personal liberty except according to the procedure established by law”[4]. Article 21 guarantee right to live with dignity which is undermine under section 67 where a married have to give up their dignity just because she is married and her husband has all right to have sexual intercourse even there are absent of consent on the part of wife. 

III.CASE LAW ANALYSIS

Independent Thought v Union Of India

Supreme court provide a landmark Judgment where they declare Exception 375 of the Indian Penal Code, 1861 currently Bhartiya Nyaya Sanhita Section 63 as arbitrary and unconstitutional and read down the exception only with respect wives aged 15 to18 years.

RIT Foundation v Union Of India

In RIT Foundation v Union Of India case “Delhi High court provided a split verdict on the concept of marital rape exception. Where “Justice Rajiv Shakdher opined that exception of section 375 of IPC is unconstitutional and It violates women’s right of privacy and to live with dignity”[5].

Whereas “Justice C.Hari Shankar disagreed with above view opined that the classification is reasonable and it based on marriage. Thus it is valid classification. And a creating a new offence is a task of legislator not of judiciary”[6].

Finally on October 4 of 2024, for the first time the union government by submitting an affidavit opposed the removal of marital rape exception. “They stated in their affidavit that although husband has no right to deprive wife fundamental right and the women’s consent doest not disappear on marriage and thus marital rape should be criminalise. However calling such act under institution of marriage “rape” will be too harsh. And they suggested that instead of removing the exception of marital rape one should opt for other remedies which are available in IPC and Protection of women from domestic violence Act,2005 which are providing serious legal punishment and protection for such act”.

CRITICAL EVOLUTION

In India marriage is consider as a sacramental institution and it should not be disrupt. Marital rape disrupt the sanctity of marriage and it destroy the purity of this devotional institution. But it doesn’t mean that women should sacrifice their dignity, equality due to that. Yet woman silently endure this kind of inhuman activity. They have to continue their marital relationship and most interestingly with the same person, the perpetrator. Thus urgent reforms should be bring forthwith to curve this inhuman activity and save the woman from such prolong suffering.

Most importantly there are many place where woman are barely have knowledge about her own right and as matter of that they suffer this and encourage other woman to suffer this as matter of faith. Thus woman should be informed about her own rights and remedies for such acts. They should be encouraged to raise their voice against such heinous crimes. Therefore Indian legislator should criminalise it and made this as mandatory ground for divorce and should also establishes a strong procedure so that it also not misuse for personal gains.

COMPARATIVE STUDIES

THE UNITED STATES

 In United States “a male who has sexual intercourse with a female not his wife is guilty of rape” as stated in the 1962 Model Penal Code. The actual process of criminalisation first initiated from the state Nebraska which first abolished the exemption of marital rape. In the year 1976. Then in the year 1993 all 50 states criminalize it finally and it eliminated it from criminal statues. Even though the marital rape is eliminated but in around 20 countries, husband is exempted if his wife is unable to give consent due to insanity, unsoundness of mind or illness.

THE UNITED KINGDOM

As per common law in England a husband cannot be guilty of marital rape because while a wife entering into marriage is presume to give consent to have sexual intercourse with her husband. This rule prevailed in England for more than 200 years but in 1889 by the case Regina v Clarence, court held that husband can be guilty of rape but this verdict gain long debate and controversy. Finally in the year 1976 through Sexual Offences (Amendment act) 1976 legislator removed the old law and added that anyone can be guilty of rape if one subjecting his wife to non-consensual sexual acts and husband is not exempted from this purview.

BHUTAN

Bhutan in the year 2004 though the Penal Code of Bhutan in Section 199 explicitly held that a defendant could be held guilty of marital rape if he compel his wife to engage in sexual intercourse against her will.

NEW ZEALAND

In the year 1986 New Zealand passed legislation by abolishing marital rape under section 28 of the Crimes Amendment Act( NO: 3) 1985.Each and every type of non-consensual sexual intercourse is punishable, husband is also come under this law he is not specially exempted due to his relationship.

PROPOSAL AND REFORMS IN THE INDIAN CONTEXT

In India marital rape become a constant and debatable issue. As it violates the basic fundamental rights of woman on the other hand criminalising it could tarnish the purity of the marital relation and it can be misuse for personal gain. Thus balancing these two requires nuanced and sensitive approaches.

Therefore the following recommendation could be taken into consideration:

Marital rape should be criminalized under Bhartiya Nyaya Sanhita 2023 by amending section 63 and 65 of the code and in doing that legislator should taken into consideration the recommendation provided by the Justice Verma Committee.

Marital rape should be the explicit ground for divorce across all law of divorce including the personal law.

The punishment of marital rape should be same as in case of rape as provided in section 64 of the act.

4.Government should create social awareness programme to educate woman about their own rights.

Courts need to take active role while dealing with marital rape where evidence need to be very strong so that the law is not misuse.

VI CONCLUSION

In India, combating marital rape necessitates a compassionate and well-rounded strategy that respects the sacredness of marriage while preserving women’s sexual liberty. In order to prevent harassment of men, legal laws that acknowledge marital rape as a crime must be put into place with safeguards against abuse. Important elements of this endeavour include cultural participation, societal education, and enabling infrastructure. India might endeavour to establish a society in which marriage is a partnership of equals, based on mutual respect and voluntary agreement, by implementing a thorough and nuanced approach. This change is crucial for maintaining and improving the institution of marriage as well as for safeguarding women’s rights. To address marital rape effectively, the law must unequivocally recognize that consent is an ongoing process that can be revoked at any time, regardless of marital status. To protect woman’s own bodily autonomy law should recognised marital rape. However, such legal reform must be accompanied by robust safeguards to prevent the misuse of these laws. There is a legitimate concern that without proper checks, the law could be misused to falsely accuse men, leading to harassment and unjust legal consequences. In addition to legal reforms, there must be a concerted effort to change societal attitudes towards marriage and consent. Educational campaigns that promote the principles of mutual respect and equality in marriage are essential. These campaigns should aim to dismantle harmful stereotypes and encourage a more balanced view of marital relationships.

REFERENCE(S):

Cases

Independent Thought v Union of India, (2017) 10 S.C.C. 800 (India)

RIT Foundation v. Union of India, (2022) SCC ONLINE Del 1404 (Del.H.C)

Regina v. Clarence, 22 Q.B.D. 23 (C.C.R.1888)

Legislation

Constitution of India 1951 (India)

Bhartiya Nyaya Sanhita 2023 (India)

Indian Penal Code 1861 (India)

Crimes Amendment Act(No.3) 1985 (New Zealand)

The penal Code of Bhutan 2004 (Bhutan)

The Model Penal Code 1962 ( United States)

Sexual Offences Amendment Act 1975 (United kingdom)

Protection of Woman From Domestic Violence Act 2005 ( India)

Secondary Sources

Bhagyashikha Saptarshi,, Marital Law of India, Manuputra, 2024

Theoretical and Empirical Analys,Sneha Singh,Rana, Rashmi Singh, 2025

Criminalization Of Marital Rape an Analytical Study in India, Mahima

 Sharma, Kumar, Mandeep and Thakur, Shweta,2025

Bibliography

Primary Sources

Bhartiya Nyaya Sanhita, No. 45 of 2023 (India).

Constitution of India.

Protection of Women from Domestic Violence Act, No. 43 of 2005 (India).

Independent Thought v. Union of India, (2017) 10 S.C.C. 800.

RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404.

Indian Penal Code, No. 45 of 1860 (India).

Secondary Sources

Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law (2013).

Vijay K. Tyagi & Lavam Tyagi, Analysing the Delhi High Court’s Approach Towards Presumption of Constitutionality in Marital Rape Case RIT Foundation v. Union of India: A Case Comment, SCC Online Blog (Jan. 6, 2023). 

International Materials

Model Penal Code § 213.1 (Am. L. Inst. 1962).

Crimes Amendment Act (No. 3) 1985 (N.Z.).

Penal Code of Bhutan § 199 (2004).

Sexual Offences (Amendment) Act 1976 (U.K.).

R v. Clarence, (1888) 22 Q.B.D. 23 (Eng.).

United Nations, Declaration on the Elimination of Violence against Women, G.A. Res. 48/104 (Dec. 20, 1993).

[1]Bhartiya Nyaya Sanhita, No. 45 of 2023, s 67 (India).

[2]Bhartiya Nyaya Sanhita,No. 45 of 2023, s 85 (India).

[3]INDIA CONST. art. 14.

[4]INDIA CONST. art. 21.

[5]Id. ¶¶ 130–180 (Rajiv Shakdher, J.).

[6]Id. ¶¶ 520–700 (Hari Shankar, J.).