Marital Rape, defined as non-consensual sexual intercourse by a husband with his wife, remains a contentious issue in India, where it is not explicitly criminalized under current penal laws. Exception 2 to section 375 of the Indian penal code (IPC) and section 375 of the Indian penal code (IPC) AND SECTION 63 OF THE Bharatiya Nyaya sanhita (BNS) exempts husbands from rape charges for non-consensual sex with their wives above 18 years of age. The legal exception, rooted in colonial- era laws and Ptriarchal norms, has sparked intense debate over women’s right, bodily autonomy, and the sancity of marriage. Despite global trends toward criminalization India remains one of the 34 countries that explicitly decriminalize marital rape, alongside nations like Afganistan and Saudi Arabia.
Legal Framework and Historical Context
The Indian Penal Code (IPC) of 1860, now partially replaced by the Bharatiya Nyaya Sanhita (BNS) of 2023, governs rape laws in India. Section 375 of the IPC (and Section 63 of the BNS) defines rape but includes Exception 2, which states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” This marital rape exemption, rooted in colonial-era laws, implies that a wife’s consent is irrelevant within marriage, except in cases involving minors.
Other legal provisions, such as the Protection of Women from Domestic Violence Act (PWDVA) of 2005, recognize sexual abuse as a form of domestic violence but provide only civil remedies, not criminal penalties. Section 498A of the IPC addresses “cruelty” by a husband, with a maximum penalty of three years’ imprisonment, but does not explicitly cover marital rape. Section 376B of the IPC criminalizes non-consensual sex by a husband with a wife living separately, with a lesser penalty (two to seven years) than rape outside marriage (minimum ten years). These provisions reflect a fragmented approach to addressing sexual violence within marriage.
India’s obligations under international law, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Universal Declaration of Human Rights (UDHR), emphasize the need to criminalize marital rape. CEDAW’s Article 2 explicitly includes marital rape in its definition of violence against women, urging states to ensure legal protections. However, India has not aligned its domestic laws with these commitments.
Judicial Perspectives
The Indian judiciary has grappled with marital rape, often highlighting tensions between constitutional rights and societal norms. Article 21 of the Constitution guarantees the right to life and personal liberty, which courts have interpreted to include the right to live with dignity. In cases like The Chairman, Railway Board v. Chandrima Das and Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court has recognized rape as a violation of dignity and human rights, yet this principle has not been extended to marital rape.
A significant development occurred in 2022 when the Delhi High Court delivered a split verdict on petitions challenging the marital rape exemption. Justice Rajiv Shakdher struck down Exception 2 as unconstitutional, arguing it violated Articles 14 (equality), 19(1)(a) (freedom of expression), and 21 (life and liberty) by denying married women autonomy over their bodies. Justice C. Hari Shankar, however, upheld the exemption, asserting that criminalizing marital rape is a legislative matter requiring consideration of social and cultural factors. The case was referred to the Supreme Court, where hearings have been repeatedly deferred, with no decision as of October 2024.
Recent High Court rulings have further complicated the issue. The Chhattisgarh High Court ruled that Section 377 of the IPC (unnatural sex) does not apply to non-consensual acts within marriage, reinforcing marital rape immunity. The Madhya Pradesh High Court similarly observed that consent is immaterial in marital sexual acts, limiting legal recourse for married women.
Government and Societal Stance
The Indian government has consistently opposed criminalizing marital rape, citing potential disruption to the “institution of marriage.” In an October 2024 affidavit to the Supreme Court, the Interior Ministry argued that labeling marital rape as “rape” is “excessively harsh” and could destabilize conjugal relationships. The government claims existing laws, such as the PWDVA and Section 498A, provide sufficient remedies, though these lack the deterrent effect of criminal penalties.
The government’s stance aligns with societal attitudes rooted in patriarchal norms, where marriage is viewed as a contract implying irrevocable sexual consent. The National Family Health Survey (2019–2021) reveals that 6% of married Indian women report sexual violence by their husbands, with 83% of sexual violence cases involving current husbands. Despite this, cultural beliefs and stigma discourage reporting, and low legal awareness exacerbates the issue.
Opposition to criminalization also stems from concerns about misuse of the law, with critics arguing it could lead to false allegations against husbands. However, studies indicate that sexual crimes are underreported, undermining this claim. The National Commission for Women and some religious groups have supported retaining the exemption, citing traditional values.
Arguments for Criminalization
Proponents of criminalizing marital rape emphasize constitutional and human rights principles. The exemption violates Article 14 by treating married and unmarried women unequally and Article 21 by denying married women bodily autonomy and dignity. The Supreme Court’s recognition of privacy and autonomy in cases like Justice K.S. Puttaswamy v. Union of India (2017) supports the argument that consent is fundamental, regardless of marital status.
Marital rape has severe physical and mental health consequences, including depression, PTSD, and suicidality, as documented in a 2022 systematic review. Recognizing it as a crime would align India with over 150 countries, including the U.S., U.K., and Nepal, which have criminalized marital rape. The Justice J.S. Verma Committee (2013), formed after the Nirbhaya case, recommended removing the exemption, but its suggestions were ignored.
Activists argue that preserving marriage should not supersede a woman’s right to safety. As the Supreme Court noted in Independent Thought, marriage is a personal institution, not a sacred contract that justifies violence. Criminalization would empower women to seek justice and challenge patriarchal norms.
Challenges and Proposed Reforms
Criminalizing marital rape faces significant hurdles, including societal resistance, judicial conservatism, and legislative inaction. The burden of proof in rape cases, coupled with stigma, makes prosecution challenging. Out-of-court settlements and inadequate data collection by the National Crime Records Bureau further obscure the issue’s prevalence.
Proposed reforms include:
- Amending the IPC/BNS: Remove Exception 2 to Section 375 and Section 63 to explicitly criminalize marital rape.
- Judicial Intervention: The Supreme Court could strike down the exemption as unconstitutional, as urged by petitioners.
- Gender-Neutral Laws: Recognize marital rape as a crime regardless of the victim’s gender, aligning with global trends.
- Awareness Campaigns: Educate women about bodily autonomy and legal rights to reduce stigma and encourage reporting.
- Comprehensive Protocols: Develop healthcare and legal frameworks to support victims, including standardized tools to measure sexual violence.
Conclusion
The non-criminalization of marital rape in India reflects a clash between constitutional guarantees and entrenched patriarchal norms. While the judiciary has acknowledged rape as a violation of dignity, the marital exemption perpetuates inequality and denies women autonomy. As the Supreme Court deliberates, criminalizing marital rape could mark a transformative step toward gender equality, aligning India with international human rights standards. However, legal reform must be accompanied by societal change to address the root causes of sexual violence within marriage.
Contributed By: Sonam Rawat (intern)