Author: Snehal Shinde, Gopaldas Jhamatmal Advani Law College
Linkedin Profile: https://www.linkedin.com/in/snehalshinde1121
Abstract
The article critically examines the issue of marital rape in India, highlighting the legal, social, and psychological implications of its non-criminalisation. While global legal systems in countries like Canada, Sweden, and New Zealand recognise marital rape as a criminal offence, India continues to exempt it under Section 63(2) of the Bhartiya Nyay Sanhita 2024. The article questions whether the protection of marriage as an institution justifies the violation of fundamental rights, particularly Articles 14 and 21 of the Indian Constitution. Drawing on data from the National Family Health Survey and judicial observations such as those by the Gujarat High Court, it underscores the urgent need for legal reform. The article also proposes educational interventions on consent, support mechanisms for victims, and the establishment of a dedicated monitoring commission. Acknowledging the potential for misuse, it nevertheless argues that such concerns should not override the necessity for justice. In essence, the piece portrays marital rape as a deeply buried yet pervasive crime—merely the visible tip of a much larger iceberg.
To the Point
Marital rape remains non-criminalised in India under Section 63(2) of the Bhartiya Nyay Sanhita, 2024, which excludes forced intercourse by a husband with his wife (above 18 years) from the definition of rape. This legal exception denies justice to countless women, despite 83% of women between 15–49 reporting sexual violence by their husbands. In contrast, countries like Canada, New Zealand, Sweden, and all U.S. states have criminalised marital rape.
The judiciary has shown progressive thinking, as seen in a Gujarat High Court ruling stating that “rape is rape, even by a husband.” However, the Supreme Court has left the matter to the legislature. The government argues that criminalising marital rape could undermine the institution of marriage, raising serious concerns over the violation of fundamental rights under Articles 14 and 21, which guarantee equality and dignity.
Introduction
Imagine being a girl, getting married, going to an unknown place, where there are unknown people, where everything is new for you. Instead of treating you patiently, making you comfortable in your new environment, you experience sexual viciousness from your spouse. Well, I said imagine from the beginning of the article, right? But your imagination is reality to 83 percent of women in India aged between 15 to 49, who have blamed their husband for sexual violence whereas according to the report of National Family Health Survey conducted in 2015-2016, 7 percent women have called their husband as an offender
Currently Section 63 of Bhartiya Nyay Sanhita 2024 and previously Section 375 of the IPC (Indian Penal Code), defines rape as: A man is said to have commit rape if he does so against the will of a women, without her consent or with her consent is the consent is obtained under fear of hurt or death or causing harm to other persons. Whereas, martial rape refers to indulging in sexual intercourse without the consent of one’s spouse. Under Section 63(2) of the Bhartiya Nyay Sanhita 2024 it is stated that, sexual intercourse by a man with his own wife, is not considered as rape provided the wife’s age is 18 or more than that.
Even though traditionally, having sexual intercourse without the consent of wife, in a marriage is not considered as rape, many countries such as New Zealand, Canada, 50 American States, three Australian States and in several European countries like France, Sweden and Denmark, it is considered illegal. In a judgement on December 8, where Justice Divyesh Joshi of Gujarat High Court, rejected bail for a man accused of rape, said that,” a man is a man; an act is an act; rape is rape; be it performed by a man, the ‘husband’ on the women ‘wife’”.
Supreme Court in its previous judgements, it indicated that the responsibility lies in the hands of the legislation to make laws. The Union Government has also stated that criminalising marital rape could “undermine the institution of marriage”. Is protecting the “marriage institution” so important that it has to violate the women’s Article 14 of the constitution, “the state shall not deny to any person equality before law or equal protection of laws within the territory of India”? Is protecting the “marriage institution” that important that is has to violate the women’s Article 21,”no person shall be denied of his life and personal liberty except according to procedure established by law”, which also includes right to dignity?
One of a solution to tackle marital rape can be inclusion of “consent” in the syllabus of adolescents. Since, lack of consent is the main reason for marital rape, if adolescents are taught in school about consent along with reproductive health, it can help in developing a proper mindset. This is a slow process but is definitely going to be fruitful in long run. Also, the role NGO’s in providing rehabilitation to the victims is also important. Creation of Marital Rape Monitoring Commission, for example in UK Domestic Abuse Commission is an independent statutory body responsible for monitoring the effectiveness of domestic abuse laws, including marital rape.
Yes, there is a possibility for misuse of criminalizing marital rape. For example, in the case of Nipun Saxena vs Union of India AIRONLINE 2018 SC 826, it was highlighted that the issue of false accusations under Section 375. The court noted that false accusations can have severe consequences for the accused and emphasized the need for careful investigation and prosecution. But that does not mean real cases “do not exist”. Laws are created to establish societal standards and prevent harmful behaviour, they help in holding individuals for their actions. They help in minimizing the criminal activities, even if some people do not adhere to them, the threat of legal consequences can still act as a deterrent. As Justice D.Y. Chandrachud said, “Law acts for those who do not believe in it”. Hence, a proper act must be constituted to criminalise marital rape in India. But, as of today it can only be said that marital rape is viewed as a “tip of an iceberg”.
FAQS
1. What is the current legal position on marital rape in India?
Under Section 63(2) of the Bhartiya Nyay Sanhita, 2024 (earlier Section 375 IPC), sexual intercourse by a man with his own wife is not considered rape if the wife is above 18 years of age. This legal exemption allows marital rape to go unpunished in India.
2. How does India’s stance on marital rape compare with other countries?
Unlike India, countries like New Zealand, Canada, France, Sweden, Denmark, all 50 U.S. states, and three Australian states have criminalised marital rape, recognising it as a violation of consent and bodily autonomy.
3. Does the marital rape exception violate fundamental rights?
Yes. It contradicts Article 14 (equality before the law) and Article 21 (right to life and dignity) of the Indian Constitution, as it denies married women the same legal protection against rape that unmarried women have.
4. What are the proposed solutions to address marital rape in India?
-Introducing consent education in school curricula.
-Strengthening rehabilitation support through NGOs.
-Establishing a statutory Marital Rape Monitoring Commission, similar to the UK’s Domestic Abuse Commission.
5. Is there a risk of misuse if marital rape is criminalised?
Yes, there is a concern about false accusations, as noted in Nipun Saxena v. Union of India. However, this risk should not undermine the need for legal protection for genuine victims. With careful investigation, misuse can be curbed while justice is ensured.
