Author: Shivani Singh, Amity University, Patna
To the Point
The debate on the criminalization of marital rape in India represents one of the sharpest confrontations between constitutional morality and social morality. While international human rights law recognizes marital rape as a serious violation of women’s rights, India’s legal system despite modernizing under the Bharatiya Nyaya Sanhita (BNS), 2023 continues to uphold a patriarchal exception that denies recognition to the crime within marriage. This article unpacks the constitutional, cultural, and legal arguments, traces the trajectory of case law, and highlights the urgent need to reconcile India’s cultural realities with its obligations toward human rights and gender justice.
Abstract
Marital rape continues to be a deep-seated legal and societal oversight in India.The historical rationale of “implied consent within marriage,” inherited from colonial jurisprudence, has resulted in the exclusion of spousal rape from the definition of rape in India’s criminal statutes. The Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the colonial-era IPC, continues to uphold this immunity under Section 63 Exception 2.
This article examines the intersection between Indian constitutional law, international human rights law, and cultural traditions. It scrutinizes leading judicial precedents, engages with comparative jurisprudence from common law jurisdictions, and highlights the tension between safeguarding marriage as a social institution and ensuring women’s bodily integrity, dignity, and sexual autonomy.
Ultimately, the paper argues that criminalization of marital rape is not only constitutionally mandated but socially necessary, and offers a roadmap for reform that balances genuine concerns of misuse with the fundamental rights of women.
The Proof
“With the enactment of the Bharatiya Nyaya Sanhita 2023, the colonial-era Indian Penal Code of 1860 has been repealed.” Its provisions modernized rape law by broadening definitions of sexual assault, enhancing punishments, and introducing gender-sensitive terminology.
Section 63, BNS, 2023 (equivalent to IPC Section 375):
Defines rape as sexual intercourse with a woman against her will, without her consent, under coercion, or when she is incapable of consent.
Exception 2, Section 63:
“Sexual relations or sexual activities performed by a man with his wife, provided the wife is at least eighteen years old, do not constitute rape.”
This exception legally sanctifies non-consensual intercourse within marriage, effectively denying married
This exception legally sanctifies non-consensual intercourse within marriage, effectively denying married women the same protection as unmarried women.
Punishments under Section 63(2):
Rigorous imprisonment for a minimum of ten years, extendable to life.
Enhanced sentences for custodial rape, gang rape, and minor victims.
Yet, the spousal rape exemption persists, undermining Article 14 (equality), Article 19 (freedom), and Article 21 (life and dignity).
Historical Roots of Marital Rape Exception
The protection of husbands from being prosecuted for raping their wives has its roots in English common law. Sir Matthew Hale, in the 17th century, contended: “A husband cannot commit rape upon his lawful wife because their mutual consent through marriage allows the wife to surrender herself in this regard to her husband.” This principle from the colonial era was incorporated into the Indian Penal Code (IPC) of 1860 and continues to influence Indian legislation. Despite social transformations, Indian criminal law clings to this archaic doctrine, reflecting how colonial patriarchy aligns with indigenous patriarchy to preserve marital immunity.
Cultural Realities in India
Marriage in India is deeply intertwined with religious, cultural, and social structures. Unlike Western liberal models that emphasize individual autonomy, Indian marriage has historically been viewed as:
In Hindu law, marriage is considered a sacred and indissoluble bond.
Contractual (Muslim law): While marriage is contractual, spousal rights include expectations of sexual relations.
Community-bound (tribal and customary laws): Marriage regulates not only individual relations but kinship and property.
These realities create resistance to criminalization because:
Permanent consent presumption: Marriage is seen as giving perpetual consent.
Family honor over individual rights: Reporting marital rape may be seen as shaming the family.
Concerns about misuse: Worries that false claims could result in the harassment of husbands.
Disruption of marriage: The belief that making marital rape a criminal offense will result in more divorces and legal disputes.
The Human Rights Dimension
The United Nations Declaration on the Elimination of Violence against Women (1993) explicitly recognizes marital rape as violence. CEDAW, to which India is a signatory, obligates states to eliminate gender-based violence, including spousal sexual violence.
Global Picture:
Over 150 countries criminalize marital rape. India is among less than 30 nations that still provide legal immunity.
Constitutional Morality vs. Social Morality:
Navtej Singh Johar v. Union of India (2018): SC held constitutional morality must prevail over social morality when they clash.
By retaining the exception, India prioritizes social conservatism over constitutional principles.
Articles Violated by the Exception:
Article 14 (Equality): Married women are denied equal protection of rape laws.
Article 19(1)(a): Denial of sexual autonomy and freedom of expression of consent.
Article 21: Right to life includes dignity, privacy, and bodily integrity.
Case Laws
Indian Jurisprudence
Independent Thought v. Union of India (2017)
SC criminalized marital sex with wives under 18 years, despite earlier allowance for child marriages.
Recognized that marriage cannot be a license for exploitation of minors.
RIT Foundation v. Union of India (2022, Delhi HC)
Landmark split verdict:
Justice Rajiv Shakdher: Struck down the exception as unconstitutional, holding it discriminatory and violative of dignity.
Justice C. Hari Shankar: Upheld the exception, citing legislative prerogative and fears of false accusations.
Case now pending before the Supreme Court.
State of Karnataka v. Krishnappa (2000): The court noted that sexual violence infringes upon Article 21, indicating a wider constitutional safeguard of bodily autonomy.
Joseph Shine v. Union of India (2018): Struck down IPC Sec 497 (adultery), stressing sexual autonomy within marriage.
Reasoning equally applies to marital rape: marriage cannot extinguish consent.
Suchita Srivastava v. Chandigarh Administration (2009): SC emphasized reproductive rights and bodily integrity as part of Article 21.
Comparative Jurisprudence
United Kingdom: R v. R (1991) abolished marital rape immunity, declaring that marriage does not equal irrevocable consent.
United States: All 50 states criminalize marital rape (though penalties vary).
South Africa: Criminalized marital rape under Domestic Violence Act.
Nepal: Criminalized marital rape in 2002, showing progressive reform despite cultural opposition.
Pakistan & Bangladesh: Retain partial immunity, similar to India.
These comparisons demonstrate India’s growing isolation on this issue among modern democracies.
Balancing the Scale: Cultural Realities vs. Human Rights
Arguments Against Criminalization
Sanctity of marriage: Law should not intrude into intimate marital relations.
Proof difficulties: Consent within marriage is difficult to prove or disprove.
Fear of false cases: May be weaponized during matrimonial disputes.
Existing remedies: Women can seek protection under the Protection of Women from Domestic Violence Act (2005) and Section 498A IPC (now BNS Sec 85).
Arguments for Criminalization
Marriage doesn’t equate to everlasting consent: Consent must be continuous and can be revoked at any moment.
Civil remedies insufficient: Domestic Violence Act lacks criminal deterrence.
Constitutional violations: Exception violates fundamental rights.
Strengthening marriage, not breaking it: Marriages rooted in coercion lack dignity; criminalization promotes mutual respect.
Suggested Reforms
Legislative Amendment: Delete Exception 2, Section 63, BNS. Make rape laws consent-based and gender-neutral.
Procedural Safeguards: Preliminary inquiries before registration.
Punishment for perjury and malicious complaints.
Integrated Framework: Harmonize criminal law with personal laws.
Expand awareness under family courts and mediation centers.
Conclusion
The non-criminalization of marital rape under the Bharatiya Nyaya Sanhita, 2023, reflects a compromise between social conservatism and constitutional commitments. However, constitutional jurisprudence, global human rights obligations, and evolving feminist theory make it clear that marriage cannot be an exception to the principle of consent.
While cultural realities and misuse concerns are valid, they cannot justify the continued denial of fundamental rights to women. The time has come for India to redefine marriage not as a site of unconditional rights for husbands, but as a partnership of equals. Criminalization of marital rape with adequate safeguards will not weaken but strengthen the institution of marriage by rooting it in dignity and consent.
FAQS
Q1. What does Section 63 of the BNS say about marital rape?
It retains Exception 2, which exempts husbands from being prosecuted for raping their wives if the wife is above 18 years.
Q2. Why has marital rape not been criminalized in India?
Due to cultural opposition, fear of false cases, and concerns about destabilizing marriage, lawmakers have hesitated to criminalize it.
Q3. How do Indian courts currently handle cases of marital rape?
Courts allow prosecution under cruelty laws (Sec 85 BNS / Sec 498A IPC) or the Domestic Violence Act, but rape charges cannot be brought.
Q4. How does India’s position compare globally?
India remains one of the few major democracies where marital rape is not criminalized, in contrast to most of Europe, North America, and neighboring Nepal.
