Marital Rape And Domestic Violence - Legal Recognition And Challenges In India
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Category: Criminal Law
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MARITAL RAPE AND DOMESTIC VIOLENCE: LEGAL
RECOGNITION AND CHALLENGES IN INDIA
Saakshi Jain, BALLB, St. Joseph’s College of Law Yukti Patel, BALLB, St. Joseph’s College of Law
ABSTRACT
In India, marriage is viewed as a sacred institution which is deeply rooted in culture and traditions. That are followed by the people for years. Despite the evolving legal landscape and modernization marriage is continued to be viewed as an essential foundation for family and social stability. Historically viewing sexual relationship within marriage between a husband and a wife has been viewed as an inherent right of the husband. This long-standing norm of the patriarchal society has led to normalising forceful sexual intercourse within marriages and dismissed consent particularly of the wife. This normalization of sexual violence that has been deep rooted in people, and can be seen even today is also directly related to domestic violence.
As both of these forms of abuse are deeply rooted in the same power dynamics, where the husband has choices over the wives’ body and her other life choices. Marital rape like other forms of domestic violence is subject to physical, emotional and psychological trauma of the victim. And yet although domestic violence is recognised and has laws that provide with civil remedies. marital rape is completely ignored and is not seen as an offence in India. It is still legally unrecognised. Even under section 63 of BNS (375 of IPC) clearly defines rape but leaves one exception very clearly that says “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 provision reinforces the belief that marriage grants unconditional sexual access to a women’s body.
Even in cases where marital rape exists with other forms of domestic violence. The victims face numerous barriers in seeking legal help. Like the absence of criminal recognition of marital rape, it forces to seek alternative remedies like in Women from Domestic Violence Act (PWDVA), 2005 or in section 86 of BNS (498A of IPC) both of which provide limited civil and criminal relief. Similarly evidentiary challenges make it very difficult for the victims to prove lack of consent as most of these incidents happen in the privacy of their home. And the burden of proof lies on the victim. Further the deep-rooted social stigma, patriarchal conditioning etc, often discourage women from coming forward, fearing retaliation and family pressure and
also because various of these victims are financially dependent on their husbands. But the most important point being various law authorities frequently refuse to register complaints, reinforcing the misconception that forced sex within marriage is a private matter and not violation of the body and fundamental rights of a women. Despite multiple petitions, legal arguments and challenges the legal system and legislature have remained hesitant to criminalise marital rape. Family courts have often cited sanctity of marriage, misuse of law and evidentiary difficulties as reasons to be reluctant to address the issue. In the case Gorakhnath Sharma vs. State of Chhattisgarh the husband was accused of having unnatural sex with his wife which led to her death. And yet he was declared not guilty by Chhattisgarh high court.
Because under Section 375 of IPC a husband can’t be guilty for raping his own wife unless she is under
18. But this judgement has sparked various debates. Similarly, the split
verdict of Delhi high court in 2022 on criminalising marital rape highlighted judicial divide on the said issue. Therefore, the failure to criminalise marital rape in India is not just a legal issue but a human rights-crises. For a meaningful change, India must have various approaches like legislative reforms, judicial intervention and societal changes. Firstly, the parliament should amend the BNS (IPC) to remove the marital rape exception and provide a clear definition of consent under marriage. Further it must Fortify PWDVA enforcement to guarantee effective protection and prosecution of different forms of domestic violence. It must also provide victims or survivors at-most security, shelter, legal aid and trauma counselling to fight against the abusive marriages.
To make sure about gender equality and legal protections for all women, it should be criminalized under domestic violence law. So that survivors have access to justice, legal remedies and societal support. This research paper would mainly delve on why Martial rape should be criminalised and how certain amendments in laws can bring about the muchneeded changes. Because by not criminalising it, we allow a serious form of domestic violence to continue.
Introduction Marriage in Indian society tends to be described as a sacred and unbreakable institution. Historically, it has been regarded as the bedrock of social hierarchy, and with it comes a number of expectations, duties, and power dynamics. One of the most driven aspects of this cultural sacralization has been the legal and social normalization of violence in the marriage and also normalization of particularly sexual violence. Marital rape, or sexual intercourse without consent within marriage, is arguably and is one of the greatest blind spots of India's criminal justice system. Everybody knows it exists, everybody knows it’s happening but people have chosen to turn a blind eye towards it. There has been various discussions and petitions for criminalization of marital rape, but none of them have been successful.
In fact if any victim tries to file a complaint, the authorities do not lodge the FIR nor do they try and take any action towards it, and usually ends p giving reasons like the exception under the rape section of the BNS (formerly known as IPC), or they simple call it a private matter between the husband and the wife. Though physical violence within marriage has received limited recognition under civil and criminal laws, sexual violence by a husband against his wife still remains under the shroud of legal impunity. Exception 2 to Section 375 of the Indian Penal Code (IPC),1 as it stands today, specifically exempts a husband from being prosecuted for raping his wife if she is over a certain age that is 18years old. This exception, based on patriarchal paradigms, excludes married women from the same rape protection that is extended to unmarried women.
It assumes marriage involves permanent sexual consent towards the husband and hence removes wives from bodily autonomy and legal reparation. The National Family Health Survey-5 (2019–21)2 reported that out of all women who have ever suffered sexual violence, an overwhelming 82% named their present husbands as the perpetrators. But because of the absence and legal recognition, such offenses are mostly unreported and not addressed. This rasis a strong question being, why does Indian law, despite it having strong constitutional protections and feminist jurisprudence, is failing to criminalize marital rape?
The research question being first, to examine the existing legal and judicial framework through which sexual and domestic violence in marriage is addressed; second, to analyse the societal, cultural, and institutional barriers to recognition and reform; and finally, to propose a detailed roadmap for legal and systemic reform. The paper combines legal analysis with sociological inquiry to argue that criminalizing marital rape is not only necessary for justice and equality but also urgent from a constitutional and human rights perspective. Indian juridical scholarship regarding marital rape has expanded immensely during the last twenty years due to a convergence of feminist theory, constitutional law interpretation, and comparative law. A
1 Indian Penal Code, § 375 Exception 2 (1860).
2 National Family Health Survey–5 (2019–21), Ministry of Health & Family Welfare, Govt. of India.
majority of juridical scholars resolutely denounce the marital rape exception as a juridical fiction which ignores women's autonomy and dignity. The doctrine has its origins in English common law of the 18th century, specifically the notorious statement by Sir Matthew Hale that it is impossible for a husband to be guilty of raping his wife due to "implied consent"3 via marriage. This patriarchal logic has since been eschewed by most democracies. India still holds on to this colonial baggage, however. Saptarshi Mandal, Ishani Mookherjee, and many others have dissected how the marital rape exemption continues to enshrine structural violence against women. Feminist legal scholars would contend that Indian jurisprudence's public/private dichotomy, where state control ceases at the door of marriage, has in effect allowed spousal sexual abuse to remain outside legal purview.
This illusory public-private dichotomy, they contend, refuses constitutional protection to women within the home. Additionally, lawyers such as Shikha Chhibbar argue that marriage must not be understood as a universal permit to sex; the right of consent should hold sway regardless of whether the women is married or not. Overwhelmingly, the literature promotes a move from vertical rights enforcement (against the state) to a horizontal strategy that acknowledges interpersonal power imbalances, particularly within intimate relationships. Committee reports have reiterated these concerns. The 172nd Law Commission Report (2000)4 and the Justice Verma Committee Report (2013)5 have both strongly recommended the abolition of the marital rape exception.
The Verma Committee, in fact, contended that consent has to be active and ongoing, and must be taken whether it’s the women’s husband or not and cannot be inferred from marital status. It reiterated that "a rapist remains a rapist regardless of his relationship to the victim. " Meaning whether the victim is the wife or a friend or anything the rapist is rapist, just because he is the husband of the victim it does not immediately make his act normal. In spite of such authoritative suggestions, legislative inertia continues. Critics like Indira Jaising and Namita Bhandare have been critical of the inaction calling it state-condoned violence.
Scientists of diverse disciplines such as law, psychology, sociology, and public health have analysed extensively the severe aftermath of marital rape and proven that its reach does not stay only on the physical side but runs quite deeply into survivors' psychological and emotional well-being. The victims of marital rape often experience a series of psychological problems, like post-traumatic stress disorder (PTSD), clinical depression, chronic anxiety, suicidal thoughts, and emotional numbing in the long term
3 Sir Matthew Hale, The History of the Pleas of the Crown 629 (1736).
4 Law Comm’n of India, 172nd Report on Review of Rape Laws (2000).
5 Justice J.S. Verma Committee, Report on Amendments to Criminal Law (2013).
and various other problems. In contrast to cases of rape by strangers, the breach of trust and security by a familiar partner usually escalates the trauma, which creates complex post-traumatic symptoms. Research by clinical psychologists finds that the coercive context of marital rape combined with the social escalation and the gravity of its situation contributes to most women having a distorted image of self-worth, shame, and loneliness. Such psychological effects are typically supplemented by bodily injuries—bruises, internal injury, infections, and, in severe instances, permanent incapacitation.
The women who survive frequent forced sex by their husbands are also highly vulnerable to reproductive health problems, such as unwanted pregnancy, miscarriage, and sexually transmitted disease (STD), particularly if they are refused control over contraceptives or subjected to coercive unprotected intercourse. The absence of legal recognition compounds such problems and the survivors remain without recourse to emergency medical attention, trauma therapy, or justice, which would have assisted them in healing. From a socio-legal perspective, researchers contend that the trauma of marital rape is compounded by the institutional silence and legal denial experienced by survivors. When the law does not even recognize that a crime has been committed, it essentially erases the survivor's experience.
This institutional way of turning a blind eye towards the crime/problem produces a culture in which the victim is disbelieved or compelled to normalize the violence as a 'marital duty'. Survivors consistently tell that when they try to explain the abuse, they are told in dismissive terms, such as "yeh to ghar ka mamla hai" (this is a domestic problem) or "shaadi mein yeh sab chalta hai" (this all goes on in marriage), solidifying the message that marriage erases a woman's independence and takes away her freedom and choises. Legal experts claim that such silence is not just like a cancer in legislation it is a constitutional default. The marital rape exception offends the substance of Articles 14 (equality before the law),6 15 (abolition of discrimination),7 and 21 (protection of life and personal liberty)8 of the Indian Constitution.
The right of bodily autonomy has been held to be a fundamental aspect of personal liberty in K. S. Puttaswamy v. Union of India,9 would be rendered hollow if a woman cannot be allowed the freedom to refuse sexual activity, particularly in the private domain of her own marriage. By refusing to acknowledge a crime has been committed, the State derelicts its responsibility to safeguard the basic rights of an underprivileged class of persons.
6 INDIA CONST. art. 14
7 INDIA CONST. art. 15.
8 INDIA CONST. art. 21.
9 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (India).
Modern feminist theory of law also places marital rape in the context of structural violence. The immunity provided to husbands is perceived as a further extension of patriarchal power over the body of women, legitimized through marriage. The marital rape exception, rather than a benign legal provision, has been argued to be state-sanctioned inequality against women. where the institution of marriage provides a cover for coercion and domination. Authors like Saptarshi Mandal, Shikha Chhibbar, and Indira Jaising have been instrumental in challenging the marital rape exception as a deeply rooted remnant of colonial legal morality. one that is starkly out of step with the vision of justice inscribed in the Indian Constitution.
These authors maintain that the exception stems from ancient 18th-century common law practices, specifically the doctrine advocated by Sir Matthew Hale, which explained that a wife, in becoming married, unconditionally consents to sexual intercourse with her husband. This understanding, they argue, was based on a patriarchal structure that viewed women as the legal property of their husbands. A perspective long abandoned in most contemporary democracies but which still haunts India's criminal code. Saptarshi Mandal, for instance, describes marital rape immunity as legal fiction violating the constitutional principles of equality and autonomy on their face. He condemns the judiciary's habitual resort to such an exemption as symptomatic of the state's denial of women's agency within marriage.
Shikha Chhibbar makes this one better by pointing out that consent isn't a premature decision made on the altar but must be respected on an ongoing, contextual level—marriage doesn't make a woman's right to decide what happens on and to her body irrelevant. She argues that the refusal of the legal system to acknowledge this truth undermines the very basic assumption of what consent is. Senior lawyer and feminist constitutional law scholar Indira Jaising has been especially vocal in condemning the exemption as a constitutional anomaly. She refers to it as a provision that "dismembers the soul of the Constitution,"10 and maintains that no legal system of any civilised jurisdiction committed to dignity and justice can uphold or sustain such an absolute immunity for a specific group of perpetrators—i. e. , husbands.
By failing to criminalize marital rape, the Indian state fails not only on its constitutional promise under Articles 14 and 21 but also violates its international pledges under international human rights law, specifically the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),11 mandating criminalization of all forms of violence on gender grounds, including violence against wife in the household. 10 Indira Jaising, Nightly Rape—A Reinterpretation of the Marital Rape Exception, Econ. & Pol. Wkly. , Vol. 59 (2024). 11 Convention on the Elimination of All Forms of Discrimination Against Women, art. 2, Dec. 18, 1979, 1249 U. N. T. S. 13.
Rape and sex cannot be differentiated based on violence alone, because even without obvious violence, fear or coercion can negate consent. Indian authors eliminate implied consent based on marriage, citing the notion that consent should be present every time there is a sexual act; a wife can refuse at any point of time, as can anyone else, and that "no" should be vested with legal power. In fact, Justice Rajiv Shakdher of Delhi High Court, in a 2022 opinion, reiterated this position by holding that a wife can retract consent at any point of time and that sex without consent is "the antithesis of what matrimony stands for" as an equality-based institution. His reasoning is consistent with scholarly opinion that marriage does not preclude individual sovereignty over one's body. Alternatively, the counter-position (held by a minority of voices, including Delhi HC's Justice C.
Hari Shankar) relies on protecting the institution of marriage and concern for spurious charges, but said position has been widely criticized in literature as relying on patriarchal stereotypes and undermining women's rights Together, these authors call for an imagining of Indian criminal law, one in which it is accepted that marriage cannot act as a recourse for the denial of human rights, and in which the right to dignity and equality will be respected regardless of marriage. Their texts highlight an essential principle: that the persistence of the marital rape exception is not only maintaining systemic gender injustice but also symptomatology of a broader constitutional and ethical shortfall in need of immediate remedy.
And so, a critical reading of law, psychology, and sociology brings out the repetitive and imperative theme: the marital rape exception is not simply a quaint relic of legal formalism; it is a structural violation of justice which erodes the rule of law, eats into the legitimacy of criminal jurisprudence, and causes permanent injury to the body and psyche of innumerable women. Its repeal is not merely a legal requirement but also a moral and constitutional imperative. The longer it stays, the more it institutionalizes a threatening message—that violence is acceptable in the confines of marriage, and consent is dispensable. Legal Framework and Case Law Analysis Indian law on rape is primarily controlled by the Indian Penal Code (IPC), 1860. The IPC defines rape as well as formulates several situations under which sexual intercourse constitutes the offense of rape.
Exception 2 to Section 375 of the IPC,12 however, specifically excludes sexual intercourse by a man with his own wife (provided that she is above 18 years of age) from the definition of rape. The colonialera statutory immunity is still one of the most controversial provisions of Indian criminal law. In 2017, the Supreme Court of India in Independent Thought v. Union of India13 corrected this anomaly, though partially. The Court ruled that the marital rape exception, as applied so far in the case of minor
12 Indian Penal Code, § 375 Exception 2 (1860).
13 Independent Thought v. Union of India, (2017) 10 SCC 800
wives (15 to 18 years), was arbitrary and against the Constitution. It harmonized the age of consent with child protection statutes and ruled that marital status could not disentitle a girl child from protection under the law on rape. The ruling did not apply this reasoning to adult women and did not abolish the general exception. With the introduction of the Bharatiya Nyaya Sanhita (BNS) in 2023, most were expecting progressive reforms. Section 6314 of the draft BNS still retained the same exception of marital rape, but with the age limit being reconfigured as per the Independent Thought judgment. This was a reflection of legislative reluctance to criminalize rape in marriage in the midst of growing public debate and judicial criticism. Besides this, Indian law also provides civil relief under Protection of Women from Domestic Violence Act (PWDVA), 2005.
15 The Act gives a wide definition of domestic violence encompassing sexual abuse and grants women protection, residence, custody, and monetary relief. PWDVA is a civil law but it doesn't criminalise marital rape. A woman can have an order of protection or separation but cannot make provisions for the prosecution of her husband for rape unless other sections of the IPC are brought into play. Section 498A of IPC16 punishes cruelty by husband or his family members. Although at times it includes sexual assault, but not rape. At times "cruelty" has been interpreted by courts to include sexual abuse, but only where it causes serious physical or mental injury. Interestingly, judicial reactions have differed in different jurisdictions. In Sree Kumar v.
Pearly Karun (1999),17 the Kerala High Court reaffirmed the immunity, holding that coercive sex by a husband was not rape if the marriage still existed. Likewise, in Gorakhnath Sharma v. State of Chhattisgarh (2019),18 the Chhattisgarh High Court acquitted a husband who was charged with rape by a violent sexual assault that resulted in the death of his wife. It was on the basis of the marital rape exception. Simultaneously, a ruling in the past was made in 2022 by the Karnataka High Court when Justice M. Nagaprasanna declined to strike down charges of rape against a husband on the grounds that the exception of marital rape "destroys the soul of the Constitution. " It was a brave ruling that broke orthodoxy and placed the issue on the national agenda. The division bench of the Delhi High Court in RIT Foundation v. Union of India (2022)19 too signified 14 Bharatiya Nyaya Sanhita, No.
45 of 2023, § 63, Gazette of India, Extraordinary, Part II, Sec. 1 (Dec. 25, 2023).
15 The Protection of Women from Domestic Violence Act, No. 43 of 2005, INDIA CODE (2005).
16 Indian Penal Code, § 498A, No. 45 of 1860, India Code (1860).
17 Sree Kumar v. Pearly Karun, 1999 SCC OnLine Ker 96.
18 Gorakhnath Sharma v. State of Chhattisgarh, CRA No. 891 of 2019 (Chhattisgarh HC).
19 RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404.
judicial difference. Justice Rajiv Shakdher held the exception of marital rape to be unconstitutional on grounds of being violative of Articles 14 and 21. Justice C. Hari Shankar dissented and upheld the exception, warning against judicial encroachment into the policymaking role of the legislature. The case is pending hearing before the Supreme Court. The judiciary has also established the basis for a rights-oriented interpretation of marital relations. In K. S. Puttaswamy v. Union of India (2017),20 the Supreme Court declared privacy to be a right, which encompasses sexual autonomy. In Joseph Shine v. Union of India (2018), it struck down the law of adultery, on the basis that marriage does not involve loss of personal agency. The foundation for a rightsbased understanding of marital relationships has also been laid by the judiciary. The Supreme Court ruled in K. S. Puttaswamy v.
Union of India (2017)21 that sexual autonomy is a part of the right to privacy. The rule of adultery was overturned in Joseph Shine v. Union of India (2018) on the grounds that marriage does not entail a loss of personal agency. Societal and Cultural Barriers The difficulty in accepting marital rape as a crime is not merely legal, but socially entrenched. India's patriarchal social fabric has traditionally placed women under the heel of the husband in marriage, and to be a wife, to be submissive. This has created widespread myths and cultural explanations that limit reporting and transformation. One of the most deeply-rooted beliefs is that marriage includes unconditional sexual availability. The "conjugal rights" idea has been misinterpreted as a concept of sexual entitlement without acknowledging the agency of the woman.
Usage of terms such as "pati parmeshwar hai" (the husband is God) verifies the moral schema in which wives are subservient. This leads women to internalize the concept that refusing sex to the husband is wrongful or shameful. Stigma is one of the key factors in silencing the victims. Sexual issues are treated like taboo in Indian society, and marital rape is minimized stating that it is a private concern. Women who try to report sexual abuse by husbands are usually met with hostility, or indifference even from their own families. these victims are typically instructed to "adjust" or reconcile rather than seeking justice. Economic dependency on the husband is an added difficulty. and leads to a threat of social isolation or destitution in case they exit the abusive relationship.
Lack of appropriate support measures such as offering shelters, income support, or legal aid serves to limit their choices.
20 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
21 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
The threat of disbelief and reciprocal accusations generally holds victims back. The story on "false cases" is now so ubiquitous as to forestall sympathy for the survivor. In spite of the fact that statistical studies confirm instances of false reporting in rape as extremely low, social assumption of abuse remains pervasive and spoils public discussion. Institutional bias adds to report writing challenges. Police are not willing to file FIRs in marital rape cases, claiming there is no provision by law. Even under the PWDVA, a civil remedy, the victims lament bureaucratic hurdles and apathy of authorities. Procedurally, marital rape is hard to prove since the offense is intimate in nature. The proof of the crime often rests unfairly on the survivor. The courts also often demand corroboration or apply stricter standards of proof than in the cases of stranger rape.
Stereotypes are employed by defence lawyers, challenging the motive or sexual history of the woman, even when such practices violate rape shield laws. In effect, institutional abandonment, social denial, and structural inequalities join hands in developing a culture of silence regarding marital rape. Legal reformation must then be accompanied by wider social change—change that labels the wife not as submissive but as a sovereign with the right to say no Arguments for Legal Reform The case for criminalization of marital rape in India rests on constitutional compulsions, international human rights norms, consistency in law, and the need for gender-sensitive criminal law. While the subject matter is complex, arguments in support of reform greatly outweigh those presented by their critics.
The marital rape exception violates the basic canons of the Indian Constitution, namely Articles 14, 15, and 21. Article 1422 provides for equality before the law and equal protection of the laws. To exempt husbands from prosecution for the offense of rape amounts to differentiation between wives and unmarried women and is an arbitrary classification and cannot meet the test of reasonable classification under Article 14. Article 15 prohibits discrimination based on sex. Since the exception in effect denies women justice, it promotes gender discrimination. Article 21, which guarantees personal liberty and the right to life, covers the right of dignity, privacy, and bodily integrity. The Supreme Court in Chandrima Das and Bodhisattwa Gautam held that rape is a serious infringement of Article 21.
By permitting non-consensual sex within marriage, the state virtually takes away this protection from married women. This dichotomy is not sustainable in a
22 The Constitution of India, arts. 14, 15 & 21.
democratic constitutional order. The Puttaswamy ruling also upheld sexual autonomy as a component of the right to privacy. The Court overturned the adultery statute in Joseph Shine, placing a strong emphasis on marital autonomy. These progressive constitutional interpretations run counter to the marital rape exception's continuous existence.
2. The Principle of Consent
Contemporary rape law globally revolves around the centrality of consent. Consent has to be voluntary, informed, and revocable at any moment. Marriage does not dispense with this principle. A woman maintains complete control over her body even within wedlock. The notion that marriage equates to consent forever is a throwback to a past where women were considered property of their husbands. As argued by scholars, if a wife can say no in judicial separation or if she is a minor, she has to enjoy the same right while living together. The law cannot cherrypick respecting consent. Justice Rajiv Shakdher's judgment aptly highlighted that "a marriage certificate is not a license for sexual violence. " Making marital rape a crime does not assault marriage; instead, it reaffirms the founding ideal of equality and respect.
As numerous feminist scholars have argued, a coerced marriage is not a holy institution—it is an institution of violence.
3. International Precedents and Global Obligations
India is a signatory to a number of international human rights treaties, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). CEDAW requires states to eradicate all forms of violence against women, including in the family. The UN Declaration on the Elimination of Violence Against Women (1993) specifically mentions marital rape as a human rights abuse. Over 70 nations, including traditional societies like Nepal, South Africa, and Turkey, have made marital rape a criminal offense. India's refusal to do so puts it in a dwindling minority that still grants husbands impunity under the law. International human rights mechanisms have consistently condemned India's legal position. India has been requested in its periodic reports to CEDAW to eliminate the marital rape exception.
Continuing with the exemption sends a message that India does not want to safeguard women in the privacy of marriage.
4. Misuse of Law: A Manageable Concern
One of the most frequently cited reasons against criminalizing marital rape is the potential for false cases. Opponents claim that women would use rape charges in marital conflicts, particularly in divorce or custody cases. But this is not an argument specific to marital rape. Every criminal statute has the potential to be abused. That is not a good enough reason to withhold justice from real victims. Empirical evidence indicates that marital sexual violence is grossly underreported. The National Family Health Survey-5 (2019–21)23 finds that 82% of women who experienced sexual violence identified their husbands as the perpetrators. However, these cases rarely make it to the courtroom. The narrative of misuse is a red herring which diverts attention from the actual crisis of under-protection. Furthermore, there are safeguards in the criminal justice system.
It is the prosecution's burden. Courts evaluate evidence against set standards. False accusations, when established, are punishable according to current laws. Misuse, then, as a legitimate issue, can be remedied through procedural integrity and not by withholding recognition of the offense.
5. Public Health and Social Impact
Marital rape has disastrous consequences for a woman's physical and emotional well-being. Victims often experience depression, PTSD, anxiety, reproductive health issues, and loss of self-esteem. Research has found that serial sexual coercion in marriage results in chronic trauma comparable to or even more severe than stranger rape. Additionally, battered wives cannot often negotiate the use of contraception, leaving them vulnerable to sexually transmitted diseases, unwanted pregnancies, and illegal abortions. The state also has a legitimate interest in protecting the health and welfare of its citizens, and marital rape disregards that duty. Criminalization of the crime would reassure survivors to report it, deter prospective abusers, and make institutions—medical, legal, and law enforcement—establish the necessary support mechanisms.
The law serves a critical expressive role: it conveys public disapproval. Marital rape as a criminal offense would signify that the crimes are not acceptable, wherever the crime occurs.
6. The Marriage Preservation Myth
A frequently repeated government argument is that criminalizing marital rape would "destroy the
23 National Family Health Survey–5 (2019–21), Ministry of Health & Family Welfare, Govt. of India.
institution of marriage. " It is a paternalistic and incorrect argument. Marriage, like any institution, should be open to constitutional examination. It cannot be preserved at the expense of human rights abuse. Abusive marriages are not worth saving. If criminalizing violence means the breakup of such marriages, it is a social adjustment, not a tragedy. Furthermore, most countries that criminalized marital rape experienced no visible breakdown in marital stability. Rather, they experienced greater agency and protection for women. Protecting marriage must not entail accepting violence. The law must strive to create equal relationships, not seal domination. As the Karnataka High Court noted, "equality must extend into the bedroom," and the Constitution cannot tolerate an exception that justifies sexual assault in the name of matrimony.
Recommendations and Way Forward Although the judicial rhetoric is gradually changing, there remains legal inertia. There is a need for a multi-pronged approach involving legislative, judicial, and administrative steps to address the lacuna. Legislative Reforms The shortest path is to modify Section 375 of the IPC (or equivalent Section 63 of the BNS) to eliminate the marital rape exception. The law must define rape as sexual intercourse without consent, irrespective of whether the parties are related or not. Consent should be the norm, and not marital status. If Parliament is reluctant, it might want to think about procedural protections against abuse, but these should not water down the offense or establish a distinct, lesser category of "spousal sexual assault. " Such partial measures would pervert the spirit of the reform.
Provisions need to be added to protect acts that are non-consensual, like oral or anal sex during marriage, under the laws of rape, particularly since Navtej Johar decriminalized consensual acts under Section 377. Judicial Interventions The Supreme Court is presently adjudicating a number of petitions questioning the exception of marital rape. It should take advantage and make a groundbreaking judgment upholding that the exception is against the constitution. Judges should also awaken their mindset when handling such matters. Guidelines to assess evidence, trial procedures, and protection to survivors can have a fair trial without
jeopardizing the accused and the complainant. Law Enforcement and Institutional Support Legal reform has to be accompanied by institutional change. Policemen have to be taught to treat complaints of marital rape seriously and without bias. Healthcare practitioners must be taught how to recognize and record proof of sexual assault in marriage. Victim support services such as shelters, legal aid, counseling, and rehabilitation programs need to be increased and included in the criminal justice system. Civil society organizations can also perform a significant role in this aspect. Awareness and Social Sensitization Law can only do so much if society itself does not change. Awareness campaigns need to emphasize that consent is important in every sexual relationship, including marriage. Respect, boundaries, and mutual consent need to be taught in school curricula.
Religious and community leaders may be mobilized to debunk myths on marriage and sexuality. TV, film, and social media have the potential to be powerful means of changing popular perception. Conclusion Marital rape is a stark blind spot in India's otherwise widening legal shield for women. The reluctance to criminalize it is rooted in patriarchal assumptions of yesteryear, cultural concerns regarding marriage, and unfounded apprehensions of abuse. However, as shown through constitutional argumentation, judicial evolution, academic examination, and lived experiences, the persistence of the marital rape exception is legally unsustainable and morally unacceptable. Marriage, once a realm beyond the domain of the state, has more and more come under questioning against the backdrop of individual rights and equality.
From striking down age-old adultery laws to upholding privacy and sexual autonomy, Indian constitutional case law has proceeded toward putting the individual's dignity foremost, even within the private sphere. Marital rape is an exception to this trend. Legal examination identifies a jarring contradiction: the body of a married woman is not quite her own as per Indian criminal law. Whereas civil relief by way of relief in the PWDVA alleviates temporary injustice, it dispenses no justice by way of criminal accountability. In the meanwhile, a married woman separated from her husband would be covered under Section 376B,24 while a woman
24 The Indian Penal Code, § 376B (1860)
residing with her husband and being subjected to repeated rapes has no solution under criminal law. This incoherence signals not only an absence of law but a constitutional value betrayal. The juridical milieu is changing. Karnataka and Delhi high courts have paved the way for marital rape to be recognized as a criminal act. The division bench decision in the Delhi High Court and the Karnataka High Court's radical interpretation of the Constitution are signs of a judiciary working overtime on this issue with mounting desperation. The issue is now before the Supreme Court, whose ruling will be historic—not merely for the law but for what message it will send to society. The social impediments to legalizing marital rape—stigmatization, economic dependence, culture—are genuine and powerful. But the answer lies not in avoiding the crime.
Instead, change must go hand in hand with public awareness generation, institutional capacity development, and grassroots mobilization. Public sensitization, police and medical professionals' training, and survivor-centric support systems must be put in place to make any change useful. Importantly, the misuse argument—while valid in certain contexts—cannot dictate policy on such a serious human rights issue. Every crime, from theft to murder, carries the potential for misuse, but that does not mean the law should not exist. A just legal system must presume that most citizens are honest, not that all will manipulate the law. It is also important to keep in mind that criminalizing marital rape is not about attacking the institution of marriage. It is about upholding the notion that marriage is a relationship of mutual respect and consent.
An institution that cannot survive without the protection of sexual violence is not one to be sustained in its present form. As Justice Shakdher aptly observed, "The institution of marriage must not be allowed to sanctify the specter of forced sex. " India stands at the crossroads of a legal and moral choice. Its choice today will decide whether it continues to provide a haven to abuse under the cover of tradition or finally upholds the autonomy, dignity, and rights of all its citizens—be they married or not. Legalizing marital rape is not going to remove the problem, but it is going to be an important step towards justice for thousands of women who have endured in silence for much too long. As the doctrine of constitutional morality has demonstrated in previous landmark cases, the law has at times to lead where society fears to tread.
In the conflict between maintaining oppressive traditions and securing fundamental rights, the Constitution has to reign supreme. The marital rape exception is an anachronism, and its time is up.
References / Bibliography
1. Indian Penal Code, 1860, Section 375 & Exception 2; Bharatiya Nyaya Sanhita, 2023, §63.
2. Independent Thought v. Union of India, (2017) 10 SCC 800.
3. Justice J.S. Verma Committee Report (2013).
4. 172nd Law Commission of India Report (2000).
5. Protection of Women from Domestic Violence Act, 2005.
6. Gorakhnath Sharma v. State of Chhattisgarh, CRA No. 891 of 2019.
7. Namita Bhandare, “Marital rape can’t remain an exception to rape law,” Hindustan Times (2025).
8. RIT Foundation v. Union of India, Delhi High Court (2022) – Split verdict.
9. Justice Rajiv Shakdher and Justice C. Hari Shankar, Opinions (Delhi HC, 2022).
10. Anonymous v. Anonymous, Karnataka HC (2022).
11. XYZ v. State of MP, Madhya Pradesh HC (2024).
12. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
13. Joseph Shine v. Union of India, (2019) 3 SCC 39.
14. Ishani Mookherjee & Mahek Bhatia, “Discarding the Marital Rape Exemption,” OxHRH Blog (2025).
15. Swarati Sabhapandit, “Criminalising Marital Rape in India,” The India Forum (2023).
16. The Wire, “How the Law Invalidates Married Women’s Experience of Rape” (2023).
17. National Family Health Survey-5 (2019–21), Ministry of Health & Family Welfare.
18. National Crime Records Bureau (NCRB) Report, 2022.
19. Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465.
20. Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490.
21. Oxford Human Rights Hub (2025).
22. Indira Jaising, “Nightly Rape – A Reinterpretation of the Marital Rape Exception,” EPW, 2024.
23. Flavia Agnes, Women and Law in India, Oxford University Press (2016).
24. Priya Dhankhar, “Experts Weigh Marital Rape Law,” Economic Times, 2023.
25. Parliamentary Debates on Criminal Law Amendments (2013).