The Invisible Victim: Sexual Violence by Husbands and Relatives Within the Indian Family Structure

1. Introduction

In India, the home is known to be a sanctuary, both in legal and cultural terms. But, even nowadays, it is one of the biggest nightmares for many Indian women, as often, husbands and other family members are the perpetrators of sexual violence, and the law tends to look past that. Our system treats families as personal spaces which falls significantly outside the ambit of legal scrutiny. According to Section 63 of the Bharatiya Nyaya Sanhita, 2023 (“BNS”), which replaced Section 375 of the Indian Penal Code, 1860 (“IPC”), there still exists an exception, that non-consensual intercourse by husband on a wife, who is of the age of majority, is not counted as rape.[1] Different other statutes like the Protection of Children from Sexual Offences Act, 2012 (“POCSO”) and the Protection of Women from Domestic Violence Act, 2005 (“PWDVA”) try to safeguard the rights of woman in domestic households, but their measures are mostly regulatory instead of being punitive. They classify the abuse under a civil issue instead of criminalising it and it is mostly child-centric, leaving adult women as ‘invisible victims’ in most cases. This article mainly focuses on how the doctrine, constitutional principles and international comparisons facilitate in revealing the core issue: the victims of marital sexual violence are often hidden by law and society. The continued legal exception of marital rape practiced in India directly contests the constitutional rights to dignity, equality and bodily autonomy, which are explicitly laid out by the competent courts of India. This legal contradiction not only challenges the validity of the fundamental rights codified in the Constitution, but also pushes India away from global consensus on human rights.  

2. The Architecture of Exclusion: Marital Rape Under the BNS, 2023

Section 63 of BNS retains the definition of rape given under Section 375 of IPC, giving room to a few alterations. Exception 2 states that if a husband has non-consensual intercourse with his wife, who is of the age of majority (eighteen years of age), the act does not constitute rape.[2] The contrast between the two statutes is that the age of the wife has been elevated from fifteen to eighteen, which was a result of judicial intervention and not any independent legislative reform.[3] Petitioners challenging this exception in courts raised questions against a major inconsistency. Section 63(d) of BNS states that if a person forces any kind of sexual conduct with any other person, then the person executing the force is committing a crime. So, if a legally married husband forces his wife to engage in any kind of sexual conduct with any other person, he would be guilty of facilitation of rape. But surprisingly, if the husband forces himself on his legally married wife, then, he has the whole legal system backing him up, as long as the wife is above the age of eighteen.[4] This exception actually traces back to the early 17^th century, when Sir Matthew Hale claimed that once married, a woman cannot take back her implicit consent for intercourse with her husband. The ideology has been rebuked, even in the country where it originated.[5] Another notable inconsistency is that Section 67 of BNS allows protection to a ‘judicially’ separated wife, if the husband tries to force himself on her, but the same protection is denied if the wife cohabits with the husband.[6]

3. From Minority to Majority: Independent Thought and the Unfinished Revolution

The Supreme Court’s landmark move came with the Independent Thought v. Union of India case.[7] A child-rights group approached the court under Article 32 of the Indian Constitution arguing that Exception 2 under Section 375 of IPC is irrational. It paves a path for harsher treatment towards married woman than unmarried girls, directly conflicts with Article 15(3), and clashes with POCSO, which criminalises all sorts of sexual conduct with anyone below the age of majority (eighteen). The exception was acknowledged by a two-judge bench, citing it as arbitrary and directly at odds with Articles, 14, 15 and 21, POCSO and Prohibition of Child Marriage Act, 2006. The court stated that Article 21 protects a child’s right of growing up – physically, mentally and economically – into an independent adult; decriminalising non-consensual sexual conduct with wives below the age of majority is a direct threat to the developmental path. But the judgement was narrow as the exception was not officially ruled out and it remained applicable to wives who attained the age of majority. This left room for further litigation.

4. RIT Foundation and the Judicial Divide

The Delhi High Court finally decided to look into the issue in RIT Foundation v. Union of India, a group of petitions challenging Section 375 and the related Section 376B of IPC.[8] On May 11^th, 2022, a split verdict was announced by the Division Bench. Justice Rajiv Shakdher coined the exception as unconstitutional and stated that it fails the reasonable classification test under Article 14, as the marital status of men acted as a shield which protected them from offences, which if committed otherwise, would result into a heinous crime. He added that the exception is a left-over from colonial days and even though it may have been constitutional before, it lost credibility as the society advanced.  He cited the Anuj Garg v. Hotel Association of India case.[9] In a memorable line, he wrote, “when marriage is tyranny, the State cannot have a legitimate interest in saving it”. Taking references from international cases, like the House of Lords in R v. R and the European Court of Human Rights in C.R. v. United Kingdom, he stated that most common-law countries rejection immunity for marital rape.[10] Justice C. Hari Shankar ruled in a different direction stating that creating a new crime by judicial order would intervene into the duties of the legislation under Article 245. He argued that it was out of judicial ambit to rescind a law, which is considered valid by the Parliament especially if it has been reviewed recently as in the 2013 Criminal Law (Amendment) Act. Final hearings started in October 2024, after the Supreme Court intervention, led by the then Chief Justice D.Y. Chandrachud. Interestingly, the Union of India’s affidavit filed that month opposed criminalising marital rape. They called it “excessively harsh” to call non-consensual intercourse between spouses “rape”, though they admitted that existing remedies under the PWDVA and IPC/BNS cruelty laws fall short.^[11]

5. Constitutional Anchors: Dignity, Equality, and Bodily Autonomy

The legal challenge to marital rape exception is backed by three key constitutional rulings.

First, in  Justice K.S. Puttaswamy v. Union of India, the Supreme Court ruled that the right to privacy is an intrinsic part of Article 21. Privacy includes three crucial pieces:

1. control over one’s own body
2. the right to keep personal information to oneself
3. freedom to make one’s own life choices.

Life choices include decisions about marriage, intercourse, and having kids, and protects them from outside control, whether from the state or, as later courts clarified, even from private individuals like a spouse.^[12] The judges said that any limit on privacy has to pass through three hoops: there must be a law backing it, a legitimate public goal, and the restriction cannot go overboard.

Second, the case of Joseph Shine v. Union of India where, the Court struck down the old adultery law and made it clear that privacy is not real if one does not have agency over their own choices. If the law disables people from pursuing dignity and autonomy, courts are there to step in — one cannot shield families from constitutional rights and basic respect just because they are “private”.^[13] This reasoning struck down the outdated coverture rule, where a wife’s legal identity was swallowed up by her husband’s. Petitioners fighting the marital rape exception rely on this—marriage should not block anyone from enjoying fundamental rights. In Independent Thought, the Court rested its logic on Article 21’s promise of dignity. From Navtej Singh Johar v. Union of India (which decriminalized same-sex relationships) to more recent cases, the court reviews always came back to one thing: one’s intimate and sexual choices are a core part of who they are under the Constitution.^[14] Thirdly, the Supreme Court, in 2022, in X v. Principal Secretary, Health and Family Welfare Department, expanded abortion rights to unmarried women and made it clear that a pregnancy from non-consensual intercourse by a husband counts as rape for getting a legal abortion. Many call this a subtle sign that courts recognize marital rape as real legal harm — even though criminal laws still technically give husbands an exception.^[15]

6. The Protection of Women from Domestic Violence Act, 2005: A Civil Palliative

In absence of criminal remedies, the PWDVA has become the sole option for the people going through marital sexual violence. The term ‘domestic violence’ consists of a broad definition, constituting harm and injury to a woman’s health and safety, be it physical or mental and sexual violence falls in this ambit as well.[16] Magistrates under this act can issue protection orders and order financial support. Importantly, this law covers husbands as well as other adult male relatives, be it paternal or marital.  But the remedies provided in this act are civil and not criminal in  nature, the offender can be prosecuted under Section 31 of this act, but the act of sexual violence cannot be criminalised until it falls under any offence defined under the BNS. The Justice J.S. Verma Committee, constituted after the 2012 Delhi gang-rape case, and many other experts argued that the PWDVA is important, but not enough. Petitioners argued that the exception of marital rape needs to be removed and claims that a protection order alone cannot erase the trauma caused by a sexual assault or prevent that from happening once again, and only punitive methods can facilitate the prevention to some extent.[17]

7. POCSO and the Sexual Victimisation of Children Within the Family

In case of a minor victim, the POCSO Act provides stronger but not very flawless protective measures. POCSO criminalises both penetrative and non-penetrative sexual conduct with anyone below the age of majority (eighteen) and it is a gender-neutral statute. If a ‘relative’ commits the crime notified above, then the law classifies it as a crime of higher degree, defined under Section 5 of the Act, as it exploits a relationship of trust that exists between the victim and the offender.[18] The real clash exists between the unwavering promise of POCSO to protect the sexual rights of minors under all cost and the old marital exception codified under the IPC. Later, in the Independent Thought case, the Supreme Court ruled that the Sections 3 and 5 of POCSO deal directly with minors and came much later than IPC and therefore they override the old exception of IPC. Therefore, striking out Exception 2 from Section 375 of IPC did not invent a new crime, rather it harmonised IPC and POCSO.[19] So, married girls within the age of fifteen to eighteen now have a legal safeguard against sexual violences. However, wives above the age of eighteen are still left unprotected. This gap was acknowledged by the RIT Foundation case. 

8. Beyond Borders: An International and Comparative Perspective

Looking at the other legal systems worldwide, India’s decision to not criminalise marital rape is very abnormal and putting the country in a later ranking in human right consensus. In 1991, the House of Lords in England and Wales put an end to the old common-law rule with their decision in R v. R. Lord Keith and made it clear that the idea that a wife gives permanent consent to intercourse just by getting married does not make sense if one understands marriage as a ‘partnership of equals’.^[20] Things moved forward in Europe too. The European Court of Human Rights backed this progress in cases like C.R. v. United Kingdom and S.W. v. United Kingdom. They reprimanded the argument that removing the marital exemption violated legal principles, saying it was a logical and expected change in the law, one that fits with the core values of the European Convention, especially respect for human dignity.^[21] Around the world, most legal systems have now criminalized marital rape in any way possible. Researchers say countries that move faster on these reforms tend to have strong women’s rights movements at home and have spent more time as members of the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”).^[22] India signed on to CEDAW back in 1993. Since then, the CEDAW Committee has urged India over and over to criminalise marital rape and to widen the legal definition of rape, so it lines up with what married women actually experience.^[23] But India is still in denial. Now, India, along with some Gulf states and a few South Asian and African countries has explicit laws protecting husbands from prosecution for rape on their legally married wives. Courts in India, including the Delhi High Court and the Supreme Court, hear this all the time: the marital rape exception is not just out of step with global trends, it is deeply at odds with India’s own constitutional promises and international commitments as a country that is supposed to stand up for human rights.

9. Structural and Evidentiary Barriers Facing the Invisible Victim

Even though the law provides remedies and relief, survivors of sexual violence within families still face tough barriers. Significantly, social stigma often restrains victims from coming forward, and also, there exists no neutral witnesses against the crimes committed as they are committed at home. This inconsistency makes it hard to prove the real crime under the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”). The new procedural rules from the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) are supposed to protect victims during recording of statements, but those protections only exist if law recognises the offence as a crime. The marital rape exception shuts the process down before it starts.[24] One of the strangest paradoxes, a wife can get civil relief under the PWDVA if she proves facts that, anywhere else, would count as rape under the BNS, but she cannot consult a criminal court. This gap is not just a technical loophole but it shapes how society understands the harm. The law ends up teaching everyone that non-consensual intercourse in marriage is just a personal “marital dispute”, not a crime. That is exactly the idea Justice Shakdher tried to push back against in his RIT Foundation judgment.[25]

10. Conclusion

India’s patriarchal legal system has slowly and awkwardly, started to recognize women’s sexual autonomy within marriage. Big cases like the Justice K.S. Puttaswamy (which brought in the idea of decisional privacy), the Joseph Shine (that broke down the old notion of coverture), and the Independent Thought (which protected underage brides) have all nudged things forward. Still, Section 63 of the BNS, 2023, lets marital rape slide by, leaving adult married women out of the usual protections of criminal law. Instead, they have to rely on civil remedies like the PWDVA, but those were never meant to do the job of criminal prosecution. The RIT Foundation case revealed judges split over whether to push constitutional values or stick to judicial restraint. Meanwhile, the government’s recent affidavit just hints at more legislative hesitation to act. Other countries advanced. Britain got rid of the marital rape exception way back in 1991. Global groups like CEDAW keep urging change in India. India’s refusal looks less like a thoughtful constitutional balancing and more like a holdover from colonial days of patriarchy—one that is long out of date. Until Parliament or the Supreme Court finally takes charge of this issue, a wife assaulted by her husband is mostly invisible to criminal law in India. She is legally ignored right where the Constitution promises—dignity, equality, bodily autonomy— to all the citizens, irrespective of age or gender.

11. Bibliography

Constitution And Statutes

• Bharatiya Nyaya Sanhita, 2023, No. 45, Acts of Parliament, 2023 (India).
• Bharatiya Nagarik Suraksha Sanhita, 2023, No. 46, Acts of Parliament, 2023 (India).
• Bharatiya Sakshya Adhiniyam, 2023, No. 47, Acts of Parliament, 2023 (India).
• Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India) (repealed 2023).
• Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012 (India).
• Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India).
• Prohibition of Child Marriage Act, 2006, No. 6, Acts of Parliament, 2007 (India).
• Medical Termination of Pregnancy Act, 1971, No. 34, Acts of Parliament, 1971 (India).
• Convention on the Elimination of All Forms of Discrimination Against Women, Dec.18, 1979, 1249 U.N.T.S. 13.

Case Laws

• Independent Thought v. Union of India, (2017) 10 S.C.C. 800 (India).
• Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1 (India).
• Joseph Shine v. Union of India, (2019) 3 S.C.C. 39 (India).
• Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1 (India).
• RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404 (India).
• Hrishikesh Sahoo v. State of Karnataka, W.P. No. 48367 of 2018 (Karn. H.C.) (India).
• X v. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi, Special Leave Petition (Civil) No. 12,612 of 2022 (Order dated Sept. 29, 2022) (India).
• Anuj Garg v. Hotel Ass’n of India, (2008) 3 S.C.C. 1 (India).
• R v. R, [1991] UKHL 12, [1992] 1 A.C. 599 (H.L.) (appeal taken from Eng.).
• R. v. United Kingdom, App. No. 20190/92, 21 Eur. Ct. H.R. 363 (1995).
• W. v. United Kingdom, App. No. 20166/92, 21 Eur. Ct. H.R. 363 (1995).

Secondary Sources

• Amy Kaufman, Suzanne Rubin & Karen Rubin, Safe at Home? Examining the Exten sion of Criminal Penalties for Marital Rape in Cross-National Context, 1979–2013, 53 Law &Soc’y Rev. 731 (2019).
• Women’s Aid Organisation, Policy Brief: Marriage Is Not a License to Rape (2018).
• Supreme Court Observer, Challenge to the Marital Rape Exception: Hrishikesh Sahoo v. State of Karnataka (2024).
• Justice J.S. Verma, Justice Leila Seth & Gopal Subramanium, Report of the Committee on Amendments to Criminal Law (2013).

[1] Bharatiya Nyaya Sanhita, 2023, § 63, Exception 2, No. 45, Acts of Parliament, 2023 (India).

[2] Indian Penal Code, 1860, § 375, Exception 2 (India) (repealed 2023).

[3] Independent Thought v. Union of India, (2017) 10 S.C.C. 800 (India) (raising the age of the wife under Exception 2 from fifteen to eighteen years by judicial interpretation, subsequently codified in the BNS).

[4] Supreme Court Observer, Challenges to the Marital Rape Exception (Day 1 Report, 2024) (summarising submissions of Sr. Adv. Karuna Nundy on Section 63(d) of the BNS).

[5] R v. R, [1991] UKHL 12, [1992] 1 A.C. 599, 611 (H.L.) (quoting 1 Matthew Hale, The History of the Pleas of the Crown 629 (1736)).

[6] Bharatiya Nyaya Sanhita, 2023, § 67, No. 45, Acts of Parliament, 2023 (India).

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

[8] RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404 (India).

[9] Anuj Garg v. Hotel Ass’n of India, (2008) 3 S.C.C. 1 (India).

[10] R v. R, [1991] UKHL 12; C.R. v. United Kingdom, App. No. 20190/92, 21 Eur. Ct. H.R. 363 (1995).

[11] Supreme Court Observer, Challenge to the Marital Rape Exception: Hrishikesh Sahoo v. State of Karnataka (updated 2025) (summarising the Union of India’s October 2024 affidavit).

[12] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1 (India).

[13] Joseph Shine v. Union of India, (2019) 3 S.C.C. 39 (India).

[14] Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1 (India).

[15] X v. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi, Special Leave Petition (Civil) No. 12,612 of 2022 (Order dated Sept. 29, 2022) (India).

[16] Protection of Women from Domestic Violence Act, 2005, § 3, No.43, Acts of Parliament, 2005 (India).

[17] Justice J.S. Verma, Justice Leila Seth & Gopal Subramanium, Report of the Committee on Amendments to Criminal Law ¶¶ 71–76 (2013).

[18] Protection of Children from Sexual Offences Act, 2012, §§ 3, 5(n), No. 32, Acts of Parliament, 2012 (India).

[19] Independent Thought, (2017) 10 S.C.C. 800, ¶¶ 71–75.

[20] R v. R, [1991] UKHL 12, [1992] 1 A.C. 599, 616 (H.L.).

[21] C.R. v. United Kingdom, App. No. 20190/92, 21 Eur. Ct. H.R. 363, ¶ 42 (1995); S.W. v. United Kingdom, App. No. 20166/92, 21 Eur. Ct. H.R. 363 (1995).

[22] Amy Kaufman, Suzanne Rubin & Karen Rubin, Safe at Home? Examining the Extension of Criminal Penalties for Marital Rape in Cross-National Context, 1979–2013, 53 Law & Soc’y Rev. 731 (2019).

[23] Women’s Aid Organisation, Policy Brief: Marriage Is Not a License to Rape 2–3 (2018) (discussing CEDAW Committee concluding observations urging removal of marital rape exceptions across jurisdictions).

[24] Bharatiya Nagarik Suraksha Sanhita, 2023, No. 46, Acts of Parliament, 2023 (India); Bharatiya Sakshya Adhiniyam, 2023, No. 47, Acts of Parliament, 2023 (India).

[25] RIT Foundation, 2022 SCC OnLine Del 1404 (Shakdher, J.).