Author: Sreya Shah, Woxsen University
To the point:
The Indian patriarchal society, on multiple occasions, states that things are changing– slowly, but surely. These multiple occasions include token gestures, legal reforms, and symbolic acknowledgments of women’s rights, often celebrated as signs of progress. And yet, in a country where marriage is considered a sacred union, the legal system still refuses to criminalise the clear violation of bodily autonomy: marital rape. Under Indian law, marital rape is defined as non-consensual sexual intercourse with one’s wife. However, sexual intercourse without consent in a marriage is considered a crime only if the wife is below the age of 15 or is judicially separated from her husband.
The law still assumes that a wife’s consent is automatic and ongoing. Despite years of activism and lived trauma, marital rape remains shielded by outdated beliefs about marriage, family, and false fears of misuse. This article explores the legal and societal gap where consent disappears once vows are taken.
Abstract:
When we talk about rape, we regard it as an inhumane crime against women. The same criminal act, when committed within marriage by the husband, is often overlooked, justified in the name of tradition and outdated social norms. It’s not just the society that doesn’t treat non-consensual sexual intercourse as a crime, but also the Indian legal system. This article delves into the gaps in law when it comes to criminalising marital rapes. The Indian law excludes marital rape from the definition of rape. The critics of this exception protest that marriage does not mean an ongoing, irreversible consent. However, the supporters state that terming it as rape would indignify the sacred institution of marriage. This article explores the ongoing legal debate over marital rape in India, highlighting key judicial observations, social arguments for and against criminalisation, and the real-world implications for survivors.
Legal Jargon:
The legal debate around marital rape in India depends primarily on Section 375 of the Indian Penal Code and now, Section 63 of the Bharaitya Nyaya Sanhita, 2023 which define the offence of rape. However, these sections carve out the exception, “Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.” This exception effectively legalises non-consensual sex of adult women within marriage, and it supports the outdated claims that marriage implies irreversible consent.
In landmark rulings like K.S. Puttaswamy v. Union of India (2017) and Joseph Shine v. Union of India (2018), the Supreme Court recognised bodily autonomy, individual dignity, and sexual agency as integral to personal liberty. In this sense, the exception of marital rape is a violation of Article 14, right to quality and Article 21, which gives the right to live with dignity and personal liberty. When a woman is not shielded against sexual assault by her husband, it is a clear violation of her bodily autonomy and also an invasion of her sexual privacy, which is guaranteed under Article 21.
The exception of marital rape is an evident case of patriarchal bias where instituion of marriage is prioritised over a woman’s autonomy. Over the years, several petitions have been filed to abolish this biased exception against women. However, in 2024, the Union Government filed an affidavit opposing the removal of the exception because treating non-consensual sexual acts as rape could be “excessively harsh and disproportionate”. India’s stance on marital rape is contradicting it’s international obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which mandates state parties to ensure legal protection against gender-based violence, including within marriage.
Several countries such as Nepal, South Africa, and the UK—have already criminalised marital rape, leaving India as one of the few democracies where the law still exempts it.
The proof:
The real-world consequences of not recognising marital rape as a crime are deeply concerning. Surveys like the National Family Health Survey (NFHS) have shown beyond doubt that women in India are not safe within their own homes, not even with their husbands. The NFHS-5 (2019-21) data has shown that a significant percentage of women are victims of sexual harassment committed by their husbands or partners. However, this data is incomplete because many women who have been victims of sexual violence by their partners do not report the crimes, largely due to social stigma, family pressure, and lack of legal recognition.
Many women are told to reconcile or accept sexual coercion as a marital duty, rather than a violation of their autonomy.
Justifications for shielding Exception 2:
The most common justification given by the supporters of this exception is that considering non-consensual sex within marriage as rape indignifies the sacred institution of marriage. They believe that this exception preserves the sanctity of marriage. These beliefs are often criticised because marriage does not equal irrevocable consent. The antagonists of this exception believe that this exception is nothing but an outdated tradition created by the patriarchal society to oppress women. Some of the other justifications of decriminalisation of marital rapes are that if this exception was abolished, it would lead to a relentless misuse of the law, innocents are often feared to be wrongly accused of marital rape, fuelling concerns about potential misuse.
The Delhi High Court, in 2022, delivered a divided opinion on whether Exception 2 aligns with constitutional values. Justice Rajiv Shakdher held that the exception was unconstitutional and infringed upon women’s rights, whereas Justice C. Hari Shankar took a differing stance, emphasising that matters of such sensitivity should be addressed by the legislature and warning of broader societal consequences if the exception were removed. The matter is now pending before the Supreme Court, making it one of the most closely watched constitutional debates in recent years.
Among these constant debates are the victims who have been left to suffer due to a lack of legal remedies available to them. In the name of marriage and culture, women have been silenced for centuries. They have been taught to endure the physical and emotional pain without any complaints. Now, when married women have learnt to speak up against the injustices, our legal system does not support them.
Case Laws:
1. Independent Thought v. Union of India (2017)
The Supreme Court read down Exception 2 to Section 375 IPC to hold that sexual intercourse with a minor wife (aged between 15 and 18) would amount to rape. This case challenged the assumption of blanket marital consent and marked the first time the Court acknowledged that marriage could not override a girl’s bodily autonomy.
2. Joseph Shine v. Union of India (2018)
While decriminalising adultery, the Court criticised laws that treated women as property within marriage. It asserted that constitutional values like equality and dignity apply within the marital relationship too—laying the groundwork for challenging marital rape immunity.
3. K.S. Puttaswamy v. Union of India (2017)
It was through this landmark case, the court recognised the right to privacy as a fundamental right. The judgment included discussions on bodily autonomy, decisional freedom, and the right to intimate choice—principles directly relevant to the marital rape debate.
Conclusion
While India has taken significant steps in empowering women, encouraging their presence in education, workplaces, it still lags when it comes to providing justice to married women and protecting their rights. Despite growing global consensus, India is still one of the few countries where non-consensual sex in marriage isn’t treated as a crime. Courts have taken steps to question this contradiction, but there are no progressive outcomes. The question here is whether a heinous crime such as marital rape should be shielded by law because marriage is considered as an irreversible consent. Whether the norms passed down distinctly by a patriarchal society in the name of culture and tradition should be considered while making laws against such heinous crimes?
Bridging this legal vacuum will not only align India with global human rights standards but also mark a crucial step toward treating women not as dependents within a marriage, but as autonomous citizens under the law.
FAQS
Q1. Is marital rape a crime in India?
No. Under current Indian law, marital rape is not criminalised for adult women. Exception 2 to Section 375 IPC exempts husbands from being prosecuted for rape within marriage, unless the wife is under 18.
Q2. What is Exception 2 to Section 375 IPC?
It’s a legal clause that states sexual intercourse by a man with his wife is not rape, provided she is not underage. This exception is at the heart of the legal debate surrounding marital rape in India.
Q3. Why has marital rape not been criminalised yet?
Arguments against criminalisation include the perceived threat of false allegations, fear of misuse, and disruption of the marital institution. Successive governments have also deferred the issue, citing societal readiness and legislative complexity.
