Author: Ritika Singh, Jaipur National University
Introduction
In India, marriage has always been seen as a sacred, enduring union that is firmly anchored in religious and cultural values. However, this idealization has often placed marriage beyond the reach of legal scrutiny, especially concerning violence and abuse within the relationship. One of the most troubling consequences of this is the legal tolerance of marital rape—non-consensual sexual intercourse by a husband with his wife—which remains outside the ambit of criminal law in India.
The core legal barrier lies in Exception 2 to Section 375 of the Indian Penal Code, 1860, which states that sexual acts by a man with his own wife, provided she is not younger than fifteen, this does not qualify as rape. This exception stems from colonial-era thinking and outdated patriarchal notions that view marriage as a blanket consent to sex, thereby denying married women their right to bodily autonomy and consent.
Despite progressive judicial interpretations and constitutional safeguards under Articles 14, 15, and 21, which ensure equality, protection from discrimination, and the right to personal liberty, the legal system continues to shield marital rape from prosecution. India remains one of the few democracies where this form of sexual violence is still not recognized as a criminal offence.
The socio-legal aspects of marital rape are examined in this article, along with its historical causes, constitutional ramifications, judicial reactions and pressing need for reform. As India evolves into a more rights-conscious society, it must confront the uncomfortable truth that denying legal recognition to marital rape is a denial of justice to countless women across the country.
Abstract:
Marital rape, defined as non-consensual sex between spouses, remains a complex and controversial issue in India. Despite increasing awareness about women’s rights and constitutional equality, Indian law continues to shield perpetrators of marital rape through the exception clause in Section 375 of the Indian Penal Code (IPC). This article critically examines the socio-legal landscape of marital rape in India, its historical context, judicial trends, constitutional implications, comparative international laws, and ongoing public and legislative discourse. By delving into case laws, expert commentary, and empirical data, it seeks to answer a poignant question: why does India still refuse to name this crime?
Legal Framework and the Marital Rape Exception:
The India Penal Code, 1860, provided the legal framework for dealing with sexual offenses in India. A thorough definition of rape is given in section 375 of the IPC. However, Exception 2 to this section explicitly excludes marital rape by stating:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
This exception has deep roots in patriarchal and colonial ideologies which perceived marriage as a contract of sexual submission by the wife. It implies that consent is presumed in marriage and that a husband has unconditional sexual rights over his wife’s body—a concept that is fundamentally inconsistent with the values of equality and autonomy.
Key Legal Jargon:
Understanding the legal debate around marital rape requires clarity on several important legal terms. Consent, as defined under the Criminal Law (Amendment) Act, 2013, must be free, informed, voluntary, and unequivocal. It cannot be assumed or implied simply by the existence of a marital relationship; ongoing, affirmative consent is essential in any sexual encounter. Bodily Autonomy, a principle derived from Article 21 of the Indian Constitution, ensures every individual has the right to privacy and to make decisions about their own body, including the right to refuse sex, even within marriage. The Doctrine of Coverture, a concept inherited from British common law, historically treated the wife’s legal identity as absorbed into that of her husband, thereby denying her independent rights—a regressive notion that continues to influence Indian legal attitudes towards marital rape. Constitutional Morality demands that laws and judicial decisions be guided by the principles of liberty, equality, and dignity, rather than outdated societal customs. Despite these evolving constitutional values, the marital rape exception reflects a colonial-era mindset where marriage is viewed as an irrevocable sexual contract. Although statutes like the Protection of Women from Domestic Violence Act, 2005 (PWDVA) recognize sexual abuse within marriage and offer civil remedies such as protection and maintenance, they fail to criminalize the act, leaving a significant gap in legal accountability for spousal sexual violence.
Judicial Trends and Landmark Cases:
Independent Thought v. Union of India (2017): The Supreme Court read down the age of consent in the marital rape exception from 15 to 18 years. Although it was a step in the right direction, the court did not address adult women’s marital rape.
Joseph Shine v. Union of India (2018): The Court struck down the adultery law (Section 497 IPC) on the grounds of gender equality and autonomy. The judgment emphasized that societal norms must evolve with constitutional values, indirectly supporting arguments for criminalizing marital rape.
State v. Amandeep (2022): In a case under the PWDVA, the Delhi High Court acknowledged the trauma of forced sex in marriage and granted relief, but reiterated that marital rape is not a criminal offence under Indian law.
RIT Foundation v. Union of India (2022): A landmark PIL in the Delhi High Court saw split verdicts. Justice Shakdher held that the marital rape exception is unconstitutional, while Justice Hari Shankar upheld it, citing the sanctity of marriage and legislative prerogative. The case is currently pending before the Supreme Court.
Proof About Marital Rape:
Despite the absence of legal recognition under the Indian Penal Code, marital rape is a very real and widespread phenomenon. Numerous studies, government reports, and court observations confirm the existence and gravity of this form of violence. According to the National Family Health Survey-5 (NFHS-5, 2019–21), approximately 6.4% of ever-married women aged 18–49 reported experiencing sexual violence by their husbands. This figure, while already alarming, is likely an underestimation due to the social stigma, fear of retaliation, and lack of legal support that discourage many women from speaking out.
In its 2013 report, the Justice Verma Committee—set up after the Nirbhaya gang rape case—explicitly stated that “the exemption of marital rape stems from a deeply entrenched gender bias in the Indian society and must be removed immediately.” The committee noted that marital rape is both a violation of a woman’s bodily integrity and her human rights. Despite these findings, the recommendation to criminalize marital rape was not adopted by the legislature.
Multiple High Court judgments have also acknowledged the psychological and physical trauma caused by non-consensual sex in marriage. For instance, in State v. Amandeep (2022), the Delhi High Court observed that a wife cannot be expected to consent to sex under coercion or threat just because she is married. In RIT Foundation v. Union of India (2022), although the final verdict was split, extensive evidence—including survivor testimonies, expert medical opinions, and social science research—was placed before the Court to establish that non-consensual sex within marriage has serious consequences, including depression, PTSD, and suicidal ideation.
Furthermore, psychological studies have confirmed that survivors of marital rape often suffer from long-term trauma. According to the Indian Journal of Psychiatry, marital rape has been linked to chronic anxiety, loss of self-worth, reproductive health issues, and long-term post-traumatic stress disorder (PTSD). The emotional betrayal by someone expected to be a source of support—rather than harm—often leads to deeper psychological scars than other forms of sexual violence.
On the international front, Human Rights Watch and Amnesty International have repeatedly criticized India for failing to criminalize marital rape, despite being a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). In its 2022 report, Human Rights Watch stated that “marital rape laws are essential to protect women’s rights and bodily integrity.” India’s continued failure to align its domestic laws with international human rights standards remains a glaring inconsistency.
In essence, the proof of marital rape lies in the stories of survivors, data from national surveys, reports by judicial committees, and the growing body of medical and psychological evidence. To deny its existence is not only a failure of empathy but also a failure of constitutional justice.
Conclusion
Marital rape in India remains a glaring and unresolved issue—an unjustifiable void in the nation’s legal and moral fabric. Despite advancements in gender equality and increasing recognition of individual rights under the Constitution, Indian criminal law continues to deny married women the basic right to sexual autonomy and dignity. While other democracies around the world have long acknowledged and criminalized non-consensual sex within marriage, India persists in upholding a regressive legal exception rooted in outdated patriarchal norms.
The refusal to criminalize marital rape is not merely a legal oversight; it reflects a deep societal reluctance to challenge traditional notions of marriage and male entitlement. As a result, countless women across the country remain trapped in abusive relationships with no access to meaningful justice. The law, in its current form, offers them civil remedies at best, but denies them the recognition and protection that criminal law would afford to any other survivor of sexual violence.
Criminalizing marital rape is not about interfering in the private sphere of marriage; it is about affirming that consent, dignity, and bodily integrity are non-negotiable human rights, regardless of marital status. It is about ensuring that a woman’s right to say “no” does not dissolve at the altar. As India aspires to be a progressive, rights-based democracy that values justice and gender equality, it must confront and correct this legal blind spot. Ignoring this issue not only betrays the constitutional promise of equality and dignity but also perpetuates a culture of silence, fear, and impunity.
Legal reform is essential, but it must be accompanied by broader societal awareness and attitudinal change. Only when the law, society, and institutions collectively recognize marital rape as a crime—not just a private grievance—can we truly claim to protect and empower all women. Until then, the Indian state will continue to fail the very citizens it is duty-bound to protect under the Constitution.
FAQS
Q1. Is marital rape a crime in India?
Answer: No, under Exception 2 to Section 375 IPC, forced sex by a husband with his wife is not considered rape if she is above 18 years.
Q2. Can a wife file a complaint against her husband for forced sex?
Answer: Under the PWDVA, a wife can seek civil remedies such as protection orders and residence rights, but not criminal prosecution for rape.
Q3. What was the Justice Verma Committee’s view?
Answer:The committee recommended the removal of the marital rape exception and recognized it as a form of sexual violence and human rights violation.
Q4. Why has the government not criminalized marital rape yet?
Answer: The government has cited social fabric, potential misuse, and need for broader societal consensus as reasons.
Q5. Is there any hope for reform?
Answer:Yes. With increasing judicial scrutiny, public awareness, and pending petitions before the Supreme Court, the tide may soon turn.
