Author-Ridhima, student at Panjab University Regional Centre, Ludhiana
To the point
According to Hindu law, marriage is a sacrament rather than a contract. Marriage is the association of two persons where the consent of both persons is necessary in every situation. When two people came together, they are considered as one person. But this does not entitle the husband to have full control over his wife. He needs to take prior consent before doing anything. Having sexual intercourse is a part of married life. But this does not mean that husband can exercise his rights without having consent of his wife. Marital rape occurs when a husband forces his wife into sexual intercourse without her free and voluntary consent. Marriage does not grant a man unconditional sexual access to his wife’s body. Consent is required everytime. Criminalisation of marital rape refers to making non-consensual sexual intercourse by a husband with his wife a criminal offence, punishable under law, just like rape outside of marriage.
Abstract
At present, only fifty two countries have laws recognising that marital rape is a crime. In many jurisdictions across the world, including India, marital rape is not recognised as a crime by law and society. Even when countries recognises rape as a crime and prescribe penalties for the same, they exempt the application of that law when a marital relationship exists between victim and perpetator. This is often called the ‘marital rape exception clause.’ This exception is based on the idea that after marriage, the identity of the woman merged with that of her husband. Therefore, law did not give the married woman a personality independent of her husband. In 2012, the Criminal law Amendment Bill, 2012, was drafted. In the bill, the word “rape’ was substituted with ‘sexual assault’ in an attempt to widen its scope but the bill did not contain any provision to criminalise marital rape. Recently, in 2015, this argument was reiterated by the ministry of Home Affairs in reply to a bill proposed by a member of parliament which aimed to criminalise marital rape.
Use of legal jargon
In India, there is no specific law criminalising marital rape in all circumstances, but there are several legal provisions dealing with this. Recommendations by the JS Verma Committee (2013) and CEDAW (2013) urge criminalization. The Supreme Court’s decisions in Independent Thought vs. UOI and discussions in Joseph Shine and Suchita Srivastava expand on autonomy and equality. Exception 2 of Section 375 of IPC effectively grants immunity to husband in most cases, except when wife is under 18 years. Section 376B of IPC criminalises non-consensual intercourse when spouses are living separately under judicial separation or otherwise. Protection of Women from Domestic Violence Act, 2005 recognises sexual abuse within marriage as a form of domestic violence. It provides civil remedies like protection orders, residence orders and monetary relief but not criminal punishment for marital rape itself. Protection of Children from Sexual Offences act, 2012 overrides marital rape immunity if the wife is under 18 years, as sexual intercourse with a minor is statutory rape regardless of consent.
The proof
The NGOs for women’s rights etc contended that the exception under Section 375(2) of the IPC infringes upon a woman’s rights to dignity, bodily autonomy, sexual autonomy, equality before the law and self expression. Marriage should not substitute for consent. Advocates argue that just as minors or non-consensual sex are punishable, marital rape should also be criminalized. The doctrine of coverture is rooted in patriarchal norms inconsistent with modern constitutional values. Marital rape has deep, long term mental health repercussions and undermines the institution of marriage by perpetuating violence, not preserving it.
Contrary to the above point of view, the state, central government and opposing groups contended that criminalizing marital rape would destabilize marriage as an institution and could be misused for harassment. They claim existing frameworks like protection under domestic violence laws, Section 498A, cruelty provisions, and civil remedies like divorce provide sufficient relief without criminal allegations. Concerns about evidentiary challenges in intimate settings, potential misuse of the law and the strain on already overburdened judicial systems are frequently raised. Opponents argue that such a significant legal change should be made by the legislature not through judicial decree and point to cultural diversity, societal norms, and low literacy as additional barriers.
Case laws
The timeline of key Indian cases on marital rape-
Smt. Nand Kishore v. State of Punjab (1963)
In this case, wife alleged forced sexual intercourse by her husband. The court held that this does not constitute rape under IPC if wife is above statutory age. This is the first post-independence reaffirmation of marital rape immunity.
T.Sareetha v. T.Venkata Subbaiah (1983)
In this case, the petitioner challenged the constitutionality of Section 9 of the Hindu Marriage Act which deals with restitution of conjugal rights on grounds that it violated privacy and autonomy. It was held that this law was unconstitutional as it could compel sexual intercourse against will. But later on this judgement was reversed.
Harvinder Kaur v. Harmander Singh (1984)
It upheld restitution of conjugal rights, saying marital privacy is not absolute. It reinforced marital sexual rights over absolute consent.
Bodhisattwa Gautam v. Subhra Chakraborty (1996)
It recognised rape as a serious human rights violation, though not about marital rape, it laid groundwork for consent jurisprudence.
Independent Thought v. Union of India (2017)
In this case, exception 2 of Section 375 of IPC regarding wives aged 15-18 was challenged. It was held that sexual intercourse with wife below 18 is rape.
RIT Foundation v. Union of India (2015)
There was public interest litigation seeking to strike down marital rape exception for adult wives. It was a split verdict. Justice Rajiv Shakdher favour criminalisation and Justice C.Hari Shanker opposed. And the matter is now pending before the Supreme Court.
Conclusion
Despite ongoing petitions, marital rape remains non-criminalized under Indian law. A notable instance is where Delhi High court recently quashed an attempt to prosecute under Section 377, reaffirming that consent is implied within marriage. India’s new penal code, effective from July 2025, continues to omit marital rape from criminal offences, drawing strong criticism from activists and rights organizations. The debate of marital rape is crucial in establishing substantive equality for married women who are otherwise relegated in public and legal discourse to the confines of their home. It is crucial to recognise that this is a major lacuna in criminal law at present defeating the constitutional provisions that grant women equality and autonomy.
FAQs
Why marital rape should be criminalised?
Marital rape should be criminalised because it violates the fundamental right to consent, dignity, and bodily autonomy. Treating it as a crime ensures that marriage is based on equality and respect, not forced submission. It aligns with human rights principles, deters abuse, and sends a clear message that sexual violence is unacceptable regardless of marital status.
Why marital rape has not been criminalised in Bharatiya Nyaya Sanhita, 2023?
The Bharatiya Nyaya Sanhita keeps the marital rape exception because lawmakers cite protecting the “institution of marriage”, fears of misuse and the belief that exististing domestic violence laws are enough. Historical colonial era assumptions about implied consent in marriage still influence the law, despite recommendations and constitutional challenges to remove the exemption.
