Authored By: Pari Sarda
Manipal University
Marriage in India is commonly regarded as a holy institution, one which unites two people in mutual respect, trust, and companionship. But behind the shroud of holiness, countless women silently endure, victims of sexual assault perpetrated by their own husbands— a harsh reality referred to as marital rape. In spite of increased awareness, Indian law still provides a legal immunity to husbands by Exception 2 to Section 375 of the Indian Penal Code (IPC) to the effect that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape. This exception succinctly opposes the basic rights of women and international human rights standards.
Marital rape is defined as non-consensual sex by a husband of his wife, which was gained by force, intimidation, or coercion. It takes the premise that marriage gives a man permanent sexual access to his wife—an outdated and sexist idea that denies women control over their own bodies.
More than 100 nations have outlawed marital rape, says UN Women, such as the United States, Canada, South Africa, France, and Australia. India, however, remains one of the rare democracies where the law continues to give immunity to husbands. The UK legalized marital rape in 1991, but India has not yet repealed this exception, thereby rendering it an outlier in the context of the human rights environment.
Section 375 of the Indian Penal Code, 1860, defines rape. Exception 2 to section 375 states expressively that marital sex by force is lawful unless the wife is a minor. This provision of law grants total immunity to husbands and denies all married women legal remedy for sexual assault.
Conversely, the domestic violence legislations like the Protection of Women from Domestic Violence Act, 2005 (PWDVA) offer some redressal. According to Section 3, sexual abuse is defined as a domestic violence. But PWDVA is a civil legislation, providing protection, residence, and maintenance—but no criminal sanction for rape.
As per the National Family Health Survey (NFHS-5, 2019-21) 29.3% of married women have faced spousal sexual or physical violence. More than 83% of women who experienced sexual violence reported their husbands as the perpetrators. According to a 2011 study conducted by the International Center for Research on Women (ICRW), they discovered that one in every five men reported forcing their wives to engage in intercourse. Just 1% of the women told the police about the violence.
According to a Human Rights Watch report, marital rape is responsible for unreported sexual violence in India since the victims do not find it worthwhile reporting acts that are not even regarded as crimes.
In spite of such startling statistics, no husband has so far been convicted of marital rape as a criminal in India because of the legal immunity.
Why is Marital Rape not yet criminalised?
1. Conservation of Marital Institution: The Indian government has frequently suggested that criminalizing marital rape would “destabilise” the institution of marriage.
2. Misuse and Proof Issues: There is fear of misuse of legislation and proving consent in marriage.
3. Patriarchal and Cultural Assumptions: The belief that marriage involves sexual consent at all times continues to prevail in judicial and legislative thought.
4. Legal Contradictions: The law penalizes rape in live-in relationships but not marital rape— a contradiction.
Case laws
1. Independent Thought v. Union of India (2017) The Supreme Court read down Exception 2 to Section 375 excluding minor wives. It ruled that sex with a wife under the age of 18, even if married, would constitute rape. This was a forward-thinking view, albeit one that left adult women still at risk.
2. Joseph Shine v. Union of India (2018) While abolishing Section 497 IPC (Adultery), the court underlined that equality and dignity of women take precedence over everything else, upholding the right to bodily autonomy.
3. Vinayaka v. State of Karnataka (2023) In this instance, the Karnataka High Court dismissed the husband’s request to cancel a rape FIR lodged by his wife. It held that “a brutal sexual act with a wife under threat or coercion violates her dignity”, though possibly not constituting rape according to existing laws.
4. RIT Foundation v. Union of India (Pending in Delhi High Court) A PIL to challenge the marital rape exception’s constitutionality is still pending. The case has set off a broad controversy and is set to be landmark when judgment is pronounced.
Solutions and Way Forward
1. Criminalisation Through Legislative Amendment- Exception 2 of Section 375 IPC should be rescinded. There should be a gender-neutral, consent-based definition of rape adopted.
2. Judicial Recognition- Until legislative reform is made, courts must interpret the existing law in a way that upholds the dignity and autonomy of women, as in Independent Thought.
3. Education and Awareness- Mass public education campaigns to:
(a) Deconstruct patriarchal attitudes.
(b) Educate that marriage is not a license to sex.
(c) Encourage consent culture.
4. Enhancing Domestic Violence Laws- While PWDVA offers civil relief, it has to be supported by criminal penalties in the case of sexual abuse in marriage.
5. Victim Support Systems- Counselling centres, crisis intervention services, and helplines. Free legal counsel and fast-track courts. Shelters and economic empowerment programs for survivors.
6. Training the Code of Policing- Sensitize police personnel and judges to the problem of marital rape, urging sensitive and survivor-friendly responses.
The non-criminalization of marital rape is rarely a matter of law—it is a constitutional and moral failure. Marriage should never be used as a excuse to take away a woman’s right to say no. The notion that “marriage sanctifies sex” should be substituted with the realisation that consent sanctifies sex. The law will not look the other way just because the perpetrator happens to wear a wedding ring.
With India imagining itself as a global leader and defender of human rights, it needs to end legitimizing violence behind closed doors. Criminalizing marital rape is not criminalizing marriage—it is about ensuring the dignity and autonomy of half of India’s population. It is time for India to recognize that consent cannot evaporate in marriage. The prehistoric immunity accorded to husbands by criminal law is a blemish on constitutional morality and global human rights. Marital rape is not a “private issue”—it is a public issue, closely connected to gender justice, autonomy over the body, and the rule of law.
Justice, being a dynamic concept, has to undergo change with changing times. Indian law has to transcend patriarchal assumptions, hear the voices of millions of women, and break the legal sanctity of violence against wife-beating. Till then, the silence of law will keep resounding the cries of hidden victims.
