Marital Rape in India: The Unfinished Legal Battle for Justice

This Article is Written by Ms. Manshi Joshi, student at Army Institute of Law, Mohali.

INTRODUCTION

Marital rape refers to non-consensual sexual intercourse between spouses, where one partner is forced into sexual relations upon the other without consent. In India, however, this act remains outside the ambit of criminal law due to an exception under Section 63(2) of the Bharatiya Nyaya Sanhita (BNS),[1] which states that sexual intercourse by a man with his wife, provided she is not under 18 years of age, does not constitute rape.

The justifications for this exception stems from historical and patriarchal norms[2] that viewed marriage as a sacrament and a wife as the property of her husband.[3] This notion traces back to the Doctrine of Coverture,[4] a colonial-era principle under which a married woman had no separate identity from her husband.[5] Despite the evolving constitutional and human rights jurisprudence, Indian law continues to uphold this exemption, leaving married women without the same legal protections afforded to unmarried women against sexual violence.

The urgent need for legal reforms is evident. The recognition of marital rape as a crime in 52 countries underscores the global shift towards protecting women’s autonomy and bodily integrity. Senior advocate Karuna Nundy, arguing against the marital rape exception, rightly emphasized:

“Protecting a married woman from rape would not destroy the institution of marriage. Marriage is personal and not institutional… sexual choices and consent are essential attributes of autonomy.”[6]

This statement highlights the fundamental human rights violation that occurs when consent is disregarded within the marriage.

LEGISLATIVE BACKGROUND AND DEVELOPMENTS IN INDIA

• Centre’s Affidavit in the Supreme Court (2022-2024): The Indian government has consistently opposed the criminalization of the marital rape. In a recent affidavit filed before the Supreme Court, the Centre stated that recognizing non-consensual intercourse within the marriage as rape could destabilize marriages and weaken the institution of family.[7] The government argues that existing legal provisions under the Protection of Women from Domestic Act (PWDVA),[8] Section 85 of BNS [9](cruelty by husband), and divorce laws provide sufficient remedies. However, this stance disregards the fact that these provisions do not criminalize the “act” of forced sexual intercourse itself.
• Judicial Trends: There has been a constant tussle between Supreme Court and High Courts. In 2022, a Delhi High Court bench delivered a split verdict on the marital rape execution. Justice Rajiv Shakder held that the exception violated Article 14[10] and 21[11] by discriminating against married women, while Justice C. Hari Shankar took the opposite view, stating that criminalizing marital rape would disrupt families and create complexities in matrimonial disputes. The conflicting opinions led to an appeal before the Supreme Court, which is yet to provide a definitive ruling.[12]
• Law Commission Reports and Government Stance: The 42^nd Law Commission Report first examined the issue of marital rape but took no steps to criminalize it.[13] Later, the 173nd Law Commission Report dismissed the idea, reasoning that such a move could cause “excessive interference in the institution of marriage.”[14] However, in 2012, the Justice J.S. Verma Committee, formed after the Nirbhaya case, recommended the deletion of the marital rape exception and proposed that no marital relationship should serve as a defence in rape cases.[15] Despite this, successive governments have refused to amend the law, citing cultural and societal complexities.

INTERNATIONAL PERSPECTIVE

• Global recognition: All around the globe, 52 countries have recognized marital rape as a criminal offense,[16] however, India is yet to recognize the same. Both developed and developing countries like the United Kingdom (1991), Canada (1983), South Africa (1993), and Nepal (2006) have explicitly removed the marital rape exception from their laws, acknowledging sexual autonomy as a fundamental right.[17]
• Legal Reforms and Judicial Approaches in Other Nations: New Zealand abolished the marital rape exception in 1985, establishing that marriage does not imply perpetual consent.[18] Mexico introduced stringent penalties for marital rape, with punishments extending up to 16 years in imprisonment.[19] In Cyprus, the legal reforms ensured that “a rape is rape, irrespective of whether it is committed within or outside marriage.”[20] Whereas Sri Lanka has only recognized marital rape in cases of judicial separation (much like in India under section 67 of BNS[21]), illustrating the partial acceptance of criminalizing forced sex in marriage.

JUDICIAL PRECEDENTS IN INDIA

1. Independent Thought v. Union of India[22]: the Hon’ble Supreme Court in the pertinent case allowed for a major leap in the acknowledgment of bodily autonomy within the institution of marriage. The Court held that sexual act with a minor wife constitutes rape and reaffirmed the inherent value of consent, even within the context of marriage. The protection is, however, unfairly withheld from adult married women due to the exception in the marital rape. The contradiction points out the inconsistency of India’s legal system- if non-consensual sexual intercourse without consent with a minor wife constitutes rape[23], then why should it be different for an adult wife?
2. Joseph Shine v. Union of India[24]: the Court decriminalized adultery by striking down Section 497 of IPC[25], understanding that sexual ownership of a woman by her husband is a denial of her dignity and autonomy. The same principle should be applied to marital rape- just as the law can no longer take away a woman’s extramarital decisions, the law should not take away autonomy from sexual consent in marriage. The judgement reaffirmed gender equality under Article 14 and 21, which means the marital rape exception contradicts it by depriving married women of protection against sexual violence.
3. Sarla Mudgal v. Union of India[26]: In this case, the importance of gender equality in personal law and the need for parallel steps to safeguard women’s rights were emphasized. The Court denounced the abuse of personal laws as a ruse to avoid complying with legal standards, claiming that the laws cannot discriminate on the basis of marital status. Similarly, the exception of marital rape does not grant equal protection to married women by creating loopholes to husbands to escape prosecution, maintaining old patriarchal norms that treat marriage as a shield against accountability.

CONSTITUTIONAL & HUMAN RIGHTS VIOLATION

• Right to Equality: the marital rape exception creates two classes of women based on their marital status- protecting unmarried women while denying justice to married women. This arbitrary classification violates Article 14[27], which guarantees equality before law.
• Right to life and Dignity: the Supreme Court has interpreted Article 21[28] to include privacy,[29] dignity, and bodily integrity.[30] Forced sexual intercourse within marriage amounts to physical and psychological violence, directly violating these fundamental rights.
• CEDAW and India’s International Obligations: India, as a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),[31] is expected to criminalize marital rape and ensure gender equality.

THE CASE FOR CRIMINALIZATION: EXAMINING AND RESPONDING TO COUNTERARGUMENTS

Preserving the Institution of Marriage: the supporters of MRE argue that criminalizing it could weaken the foundation of marriage, which is based on mutual trust and companionship. They believe legal intervention in private marital affairs could lead to an increase in legal disputes and divorces.

However, the legal protection against non-consensual acts do not undermine marriage but reinforces the principle of mutual respect and dignity. A legal framework that ensures bodily autonomy strengthens relationships rather than destabilizing them. Protecting individuals from harm should take precedence over maintaining a legal fiction of marital harmony.[32]

1. Risk of False Allegations: whereas some believe that introducing a law criminalizing marital rape may lead to an increase in false accusations, which could be used as a tool for harassment in matrimonial disputes. They argue that proving consent within marriage is a complex concept, making it difficult to differentiate between genuine cases and false claims.

Regardless every criminal law carries the possibility of misuse, but that does not justify its absence.[33] Instead of denying legal protection to victims, procedural safeguards can be introduced to prevent wrongful convictions. Courts already assess evidence in complex cases like domestic violence and sexual harassment, similar mechanism can be applied here.

1. Cultural and Societal Barriers: there is a belief that marriage in India is deeply rooted in tradition, where the relationship between spouses is considered as sacred. They argue that introducing a law against marital rape may go against the long-standing cultural values and dispute the traditional framework of marriage.

Even so the social customs evolve, and therefore, law must reflect changing societal values. Many practices, such as child marriage and dowry, were once considered cultural norma but were later criminalized to uphold individual rights. Ensuring personal dignity and autonomy should not be sacrificed in the guise of tradition.

1. Challenges in Enforcement: various concerns have been raised about the difficulty of proving marital rape, as most incidents occur in private. The lack of medical evidence or independent witnesses make legal enforcement challenging. Some fear that overburdened law enforcement agencies may struggle with the implementation.

Yet it is contended that practical challenges exist in criminal cases, but they do not justify inaction. With proper legal procedures, sensitization of law enforcement, and judicial training, marital rape laws can be effectively implemented. Many countries have successfully enforced laws while addressing concerns through legal safeguards.

SUGGESTIONS FOR LEGISLATIVE AND POLICY REFORMS

1. Amendment in BNS to criminalize the exception: removal of section 63(2) in BNS[34], for ensuring legal recognition of marital rape. Simultaneously, introduce safeguards such as requiring corroborative evidence or judicial oversight in filing cases to prevent misuse.
2. Judicial Sensitization & Law Enforcement Training: establish specialized training programs for judges, police, and medical professionals to handle marital rape cases sensitively. Courts should adopt victim-centric approaches, ensuring survivors are not retraumatized during legal proceedings.
3. Support Systems for Survivors: there must be establishment of strengthen shelters, legal aid services, and trauma counselling to assist survivors. Government and NGOs should collaborate to create rehabilitation programs that provide financial independence and long-term support.
4. Public Awareness Campaigns: implement nationwide education to challenge regressive societal norms about consent within marriage. Schools, workplaces, and religious institutions must practice awareness drives promoting gender equality and legal rights.

CONCLUDING REMARKS

Marital rape inflicts deep emotional, physical, and psychological harm, violating fundamental rights enshrined in the Indian Constitution. The continued existence of the marital rape exception contradicts the principles of equity, dignity, and justice, failing to recognize a woman’s autonomy within marriage.

Some argue that alternative legal provisions- under BNS, PWDVA or divorce laws- offer remedies. However, these laws address specific aspects of domestic abuse, not the distinct crime of marital rape. Treating these provisions as substitutes is akin to giving a child candy to distract him from an injury rather than addressing the wound itself- it may offer solace, but it does not heal the underlying harm.

For any legal reform to be effective, its implementation must be robust and well-structured. A hasty or poorly framed amendment could lead to unintended consequences. Therefore, any legislative change must be comprehensive, gender-neutral, and quipped with a safeguard to ensure justice without misuse.

References

[1] Bharatiya Nyaya Sanhita 2023, s 63(2).

[2] Raveena Rao Kallakuru and Pradyumna Soni, ‘Criminalisation of Marital Rape in India: Understanding Its Constitutional, Cultural and Legal Impact’ (2018) 11 NUJS L Rev 1.

[3] To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6) HARVARD LAW REVIEW, 1256 (1986).

[4] Marital Rape in India’ (Drishti IAS) https://www.drishtiias.com/printpdf/marital-rape-in-india accessed 26 February 2025.

[5] Ibid.

[6] Karuna Nundy, statement in Supreme Court of India, arguing for the petitioners in Marital Rape Exception Hearing (2023).

[7] ‘Supreme Court on Marital Rape Exception Hearing’ The Hindu (New Delhi, 23 October 2023) https://www.thehindu.com/news/national/supreme-court-on-marital-rape-exception-hearing-oct-23/article68781795.ece accessed 26 February 2025.

[8] Protection of Women from Domestic Violence Act 2005, s 43.

[9] The Bharatiya Nyaya Sanhita 2023, s 85.

[10] The Constitution of India, art 14.

[11] The Constitution of India, art 21.

[12] Nupur Thapliyal, ‘Delhi High Court Passes Split Verdict on Criminal Marital Rape, Justice Rajiv Shakdher Holds Exception 2 of Section 375 IPC Unconstitutional’ (Live Law, 26 February 2025) https://www.livelaw.in/top-stories/delhi-high-court-passes-split-verdict-on-criminalizing-marital-rapejustice-rajiv-shakdher-holds-exception-2-of-section-375ipc-unconstitutional-198832?fromIpLogin=82847.4607861444 accessed 26 February 2025.

[13] Law Commission of India, Indian Penal Code, Report No. 42 (June 1971), available at http://lawcommissionofindia.nic.in/1-50/report42.pdf (last visited on Feb 28, 2025).

[14] Raveena Rao Kallakuru and Pradyumna Soni, ‘Criminalisation of Marital Rape in India: Understanding Its Constitutional, Cultural and Legal Impact’ (2018) 11 NUJS L Rev 1.

[15] Ibid.

[16] UN Women, Progress of the World’s Women 2011-2012 (2011) 17 http://www2.unwomen.org//media/field%20office%20eseasia/docs/publications/2011/progressoftheworldswomen-2011en.pdf?v=1&d=20160810T092106 accessed 15 December 2017.

[17] ‘Marital Rape Laws by Country’ (Wikipedia) https://en.wikipedia.org/wiki/Marital_rape_laws_by_country accessed 27 February 2025.

[18]A P Simester and J Brookbanks, Principles of Criminal Law (1st edn, Brookers Ltd 1998) 552.

[19] Saurabh Mishra and Sarvesh Singh, ‘Marital Rape—Myth, Reality and Need for Criminalization’ (unpublished research paper).

[20] Ibid.

[21]The Bharatiya Nyaya Sanhita 2023, s 67.

[22] Writ Petition (CIVIL) NO. 382 OF 2013.

[23] In Re: Right to Privacy of Adolescents, 2024 SCC OnLine SC 2055.

[24] AIR 2018 SC 4898; (2019) 3 SCC 39.

[25] Indian Penal Code, 1860, s. 497.

[26] 1995 AIR 1531; (1995) 3 SCC 635.

[27] The Constitution of India, art 14.

[28] The Constitution of India, art 21.

[29] State of Karnataka v. Krishnappa, AIR 2000 SC 1470, (2000) 4 SCC 75.

[30] Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.

[31] United Nations, Convention on the Elimination of All Forms of Discrimination Against Women, Treaty Series, vol 1249, p 13 (18 December 1979).

[32] Saurabh Mishra and Sarvesh Singh, ‘Marital Rape—Myth, Reality and Need for Criminalization’ (unpublished research paper).

[33] Ibid.

[34] Bharatiya Nyaya Sanhita 2023, s 63(2).