Published On: 27th September 2026
Authored By: Sudiksha Mathur
Insitute of Law, Nirma University
I. ABSTRACT
Marriage in India is considered as the most sacred and beautiful part of one’s life. It is associated with trust, companionship and mutual respect. However, getting married does not mean that you have to give up your bodily rights.
Unfortunately, many women experience forced or non-consensual sexual relations within marriage. However, social stigma, fear of judgment, family pressure and the belief that such acts are normal in married life often prevents women from speaking up or seeking legal protection
Marital rape has been criminalised in more than 100 countries and India comes within the 36 Countries that have not criminalised marital rape as crime yet. This article discusses the issue of Marital rape in India and the legal position surrounding it. It focuses on whether marriage can be treated as a permanent consent to sexual relations and recognises consent, respect and bodily autonomy in marriage. The article also looks at Marital rape from the perspective of Constitutional rights, specifically equality, dignity and personal autonomy. It argues that a women’s right to consent should not be dependent on her marital status and that marriage does not give a stamp of permanent consent for sexual relations.
II. INTRODUCTION
Marriage is a very important social institution in India. It is believed that husband and wife should respect and support one another. But, the reality inside some households is very different.
It is a sad reality that some married women are forced to have sexual relations with their husbands even when they do not consent. They may be threatened, physically assaulted, emotionally pressured or forced through fear. This is known as Marital rape.
The problem is that, Indian law does not recognise marital rape as a criminal offence. If a husband has sexual intercourse with his adult wife without her consent, then he may not be prosecuted for rape under the present legal position. But, if a man has sexual intercourse with an unmarried women without her consent, the act is considered as rape. However, if the same act is committed by a husband against his wife, the law provides an exception. This raises a very significant question-
CAN MARRIAGE BE TREATED AS PERMANANET CONSENT TO SEXUAL RELATIONS?
The answer should be a big NO. Consent is important in every relationship, including marriage. A woman does not and should not lose her right to say “NO” merely because she is a wife.[1]
Exception 2 to Section 375 of IPC[2] states “non-consensual sexual intercourse by a man with his wife, if she is over 15 years, does not amount to rape”. Thus, coercive and non-consensual intercourse by a husband with his wife (above 15 years of age) is outside the ambit of rape. It has been presumed that a woman, on marriage gives her consent forever to her husband for sexual intercourse.
In India, almost 83% of married women aged between 15 and 49 have blamed their husband for sexual violence whereas 7% have called the bygone husband an offender, according to the report of 2015-16 released by National Family Health Survey.[3]
The issue of marital rape is not only related to criminal law, it is also connected with constitutional rights. Forced sexual relations affect a woman’s dignity, privacy, personal liberty, mental health, and most importantly her bodily autonomy. Therefore, the issue must be examined from the perspective of Article 14 and 21 of the Indian Constitution.[4]
III. MEANING OF MARITAL RAPE
Marital rape refers to sexual intercourse or forceful sexual activity by a husband with his wife without her consent or against her will.
The important elements of Marital rape are-
- There is a sexual act or sexual intercourse.
- The wife does not freely agree to the act.
- The husband uses force, threats, pressure, or other forms of coercion.
- The act takes place within a marriage.
Marital rape does not always involve physical violence. A woman may also be forced through threats, emotional pressure, financial dependence, or fear of harm. For example- a husband may threaten to beat his wife, abandon her, remove her from the house, or harm their children if she refuses sexual relations.
Consent must be voluntary.[5] Silence, fear, or lack of physical resistance should not automatically be considered consent.
Marital rape has not been criminalised in India yet. Thus, it violates women’s right to refuse sexual intercourse against her will. It also violates her right to liberty recognised under Article 21 of Constitution of India.[6] Marriage creates a legal and social relationship but it does not make one spouse the owner of the other spouse’s body.
IV. HISTORY OF MARITAL RAPE EXCEPTION IN INDIA
The idea that a husband cannot rape his wife comes from old English common law. In the eighteenth century, married women were often treated as overly dependent on their husbands. Their legal identity was considered as same as that of their husbands.
One of the most famous statements supporting this idea was made by Sir Matthew Hale.[7] According to his view, a wife gave permanent consent to sexual relations by entering into marriage. This idea was based on the belief that a wife could not withdraw her consent after marriage, which is simple very degrading and misogynistic. Husband and wife were seen as one entity and all the rights of the wife (including her sexual rights) were absorbed by those of her husband. Further, there is blind belief that a husband cannot rape his own wife.
There were three main ideas behind this old rule- Implied consent, unity of husband and wife, and the property theory which states that wife was the property of her husband and their individual identity was crushed.
These ideas were created in a time when women did not have equal legal or social status. They are inconsistent with modern constitutional values. Today, women are recognised as independent individuals with their own rights, choices and legal identity.
The Indian Penal Code was enacted in 1860 during British rule.[8] The marital rape exception became a part of the law during this period. Although Indian criminal law has changed in several ways, the basic exception has continued.
V. CURRENT LEGAL POSITION IN INDIA
The Indian law does not criminalise Marital rape.
A. Position Under the Indian Penal Code, 1860
Section 375 of the Indian Penal Code defined rape.[9] It listed situations in which sexual intercourse could amount to rape, including intercourse-
- Against the woman’s will.
- Without her consent.
- Obtained by putting her or another person in fear of death or hurt.
- When she is unable to understand the nature and consequences of the act.
- When she is below the legally prescribed age.
However, Exception 2 to Section 375 stated that sexual intercourse by a man with his own wife, where the wife was above the prescribed age would not be considered as rape.[10]
Originally, the exception applied when the wife was above fifteen years of age. In Independent Thought v. Union of India, the Supreme Court increased the age protection to eighteen years.[11] Therefore, sexual intercourse by a husband with his wife below eighteen years can be treated as rape. But unfortunately, the law still does not recognise rape by a husband against his adult wife.
B. Position Under the Bharatiya Nyaya Sanhita, 2023
The Bharatiya Nyaya Sanhita, 2023 replaced the Indian Penal Code.[12] Section 63 of the BNS deals with rape. Exception 2 to this section continues to protect a husband from a rape charge where the wife is eighteen years of age or above.
This means that the basic legal position has not changed. The criminal law still gives special protection to a husband when the alleged victim is his adult wife.
C. Other Legal Remedies
Although marital rape is not recognised as a separate offence, a woman may use other legal provisions in certain situations. These may include-
- The Protection of Women from Domestic Violence Act, 2005.[13]
- Provisions relating to cruelty by the husband or his relatives.[14]
- Provisions relating to causing hurt or criminal intimidation.[15]
- Civil remedies such as protection orders, residence orders, and maintenance.[16]
However, these remedies do not provide the same protection as a law specifically criminalising marital rape.
VI. IMPORTANCE OF CONSENT IN MARRAGE
Consent is the most important part of any sexual relationship. Consent means a free and voluntary agreement to participate in a sexual act.[17]
Consent must have the following qualities-
- It must be given freely.
- It must not be obtained by force or fear.
- It must be based on understanding.
- It must be specific to the particular act.
- It can be withdrawn at any time.
The word ‘consent’ plays an important role in every aspect. Whether it has been given by men or women, anything against the will of a person is unacceptable. It’s been 80 years since India’s independence but still, women are not fully independent and cannot act freely by their own.
The idea of permanent consent is unfair because it treats the consent given at the time of marriage as if it continues forever. A marriage ceremony cannot be treated as a licence for one spouse to use the other spouse’s body without permission.
VII. MARITAL RAPE AND CONSTITUTIONAL RIGHTS
Marital rape affects the Fundamental rights of married women, especially the rights guaranteed under Article 14 and 21 of the Indian Constitution.
Article 14 guarantees equality before law and equal protection of laws.[18] The marital rape exception creates a difference between married and unmarried women. If a man has sexual intercourse with an unmarried woman without her consent, it can amount to rape. However, if a husband commits the same act against his adult wife, he is protected by Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023. This difference is based only on the woman’s marital status which is unfair. A married woman and an unmarried woman are equally entitled to protection of law. Marriage should not reduce the legal rights of a woman. The marital rape exception appears to violate Article 14 because it denies equal protection to married women.
Article 21 protects the right to life and personal liberty.[19] The Supreme Court has interpreted this right widely and has included dignity, privacy, personal liberty and bodily autonomy within it.[20] Bodily autonomy means that every person has control over their own body. Forced sexual relations violate a woman’s dignity and personal liberty. A wife is an independent individual and not the property of her husband. She has the right to decide whether she wants to engage in sexual relations or not.[21] This right cannot be taken away just because she is married. Therefore, marital rape also violates the right to dignity, privacy, and bodily autonomy under Article 21.
VIII. IMPORTANT JUDICIAL DECISIONS
- Independent Thought v. Union of India
In Independent Thought v. Union of India[22], the Supreme Court held that sexual intercourse with a wife below eighteen years of age can amount to rape. The Court read down the marital rape exception to protect child wives. This judgment was important because it recognised that child marriage cannot take away the protection available to girls under criminal law. However, this decision did not remove the marital rape exception for adult married women.
- Suchita Srivastava v. Chandigarh Administration
In Suchita Srivastava v. Chandigarh Administration[23], the Supreme Court recognised that reproductive choice is a part of personal liberty under Article 21. This judgment supported that a woman has the right to make decisions about her own body and reproductive life. This principle is important in marital rape case because a woman should also have the right to refuse unwanted sexual relations.
- Justice K.S. Puttaswamy v. Union of India
In Justice K.S. Puttaswamy v. Union of India,[24] the Supreme Court recognised privacy as a fundamental right. Privacy includes the right to make personal and intimate decisions about one’s body and personal life. This decision strengthens the argument that sexual consent is a personal decision. A woman’s consent cannot be assumed simply because she is married or is silent.
- Delhi High Court Split Verdict
In 2022, the Delhi High Court gave a split verdict on the constitutional validity of the marital rape exception.[25] Justice Rajiv Shakdher held that the exception was unconstitutional because it violated a married woman’s right to equality, dignity, privacy, and bodily autonomy. On the other hand, Justice C. Hari Shankar upheld the exception and stated that Parliament should decide the issue.
Since the judges gave different opinions, the matter is pending before the Supreme Court.[26] As of 21 August 2026, marital rape of an adult wife is still not recognised as rape under the BNS.
IX. WHY MARITAL RAPE SHOULD BE CRIMINALISED
Marital rape should be criminalised as soon as possible because marriage cannot be treated as permanent consent. Consent must be free, voluntary and present at the time of every sexual act. A woman has the right to refuse sexual acts even after marriage and she can withdraw her consent at any time. Denying this right means treating married women as less equal than unmarried women.
The existing exception is based on outdated beliefs that a wife has a duty to satisfy her husband sexually or that the husband has control over her body. Such beliefs are against the basic values of the Constitution. They violate equality under Article 14 and Article 21. A husband should not receive protection from rape law merely because he is married to the survivor.
Criminalisation will not destroy marriage. Rather, it will promote the idea that marriage should be based on mutual respect, communication and consent. It will make sure that violence cannot be justified in the name of marriage. The law must recognise that forced sex causes the same physical and emotional harm whether it is committed by a stranger, a friend, or a husband. Therefore, the marital rape exception should be removed and adult married women should receive the same legal protection as all other women. Marital rape is heinous crime and it must be included under the definition of rape as soon as possible to protect the married women of our nation and make India a habitable and happy country for women.
X. CONCLUSION
Marital rape is a serious violation of a woman’s dignity, privacy, equality and bodily autonomy. Marriage is made up of companionship and mutual responsibility. And it cannot give a husband permanent control over his wife’s body.
A woman does not lose her identity or her right to say “NO” after marriage. Consent must be voluntary and continuing. It cannot be assumed from the fact that two people are married. The marital rape exception treats married women differently from unmarried women and is difficult to reconcile with Articles 14 and 21 of the Constitution.
As of 21 August 2026, Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita still excludes non-consensual sexual acts by a husband against an adult wife from the offence of rape. [27]The constitutional challenge to this exception remains pending before the Supreme Court.
India must move towards a legal system where every woman receives equal protection, whether she is married or unmarried. Criminalising marital rape is not against marriage, it is necessary to ensure that marriage is based on consent, respect, dignity, and equality.
XI. BIBLIOGRAPHY
- Independent Thought v Union of India (2017) 10 SCC 800
- Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1
- RIT Foundation v Union of India 2022 SCC OnLine Del 1404
- Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1
- Bharatiya Nyaya Sanhita 2023
- Indian Penal Code 1860
- Protection of Women from Domestic Violence Act 2005
- Hale M, The History of the Pleas of the Crown (Vol 1, 1736)
- International Institute for Population Sciences (IIPS) and ICF, National Family Health Survey (NFHS-4), 2015–16: India (IIPS 2017)
[1] Independent Thought v Union of India (2017) 10 SCC 800.
[2] Indian Penal Code 1860, s 375 Exception 2; Independent Thought v Union of India (2017) 10 SCC 800.
[3] International Institute for Population Sciences (IIPS) and ICF, National Family Health Survey (NFHS-4), 2015–16: India (IIPS 2017) 566–67.
[4] Constitution of India 1950, arts 14 and 21.
[5] Bharatiya Nyaya Sanhita 2023, s 63 Explanation 2.
[6] Constitution of India 1950, art 21.
[7] Sir Matthew Hale, The History of the Pleas of the Crown (Vol 1, 1736) 629.
[8] Indian Penal Code 1860, s 375 Exception 2.
[9] Indian Penal Code 1860, s 375.
[10] Indian Penal Code 1860, s 375 Exception 2.
[11] Independent Thought v Union of India (2017) 10 SCC 800.
[12] Bharatiya Nyaya Sanhita 2023, s 358; Ministry of Home Affairs, Government of India, Notification SO 850(E), 23 February 2024.
[13] Protection of Women from Domestic Violence Act 2005, s 3 Explanation I(ii).
[14] Bharatiya Nyaya Sanhita 2023, ss 85–86.
[15] Bharatiya Nyaya Sanhita 2023, ss 115–16, 351.
[16] Protection of Women from Domestic Violence Act 2005, ss 18–20.
[17] Bharatiya Nyaya Sanhita 2023, s 63 Explanation 2.
[18] Constitution of India 1950, art 14.
[19] Constitution of India 1950, art 21.
[20] Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
[21] Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1.
[22] Independent Thought v Union of India (2017) 10 SCC 800.
[23] Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1.
[24] Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
[25] RIT Foundation v Union of India 2022 SCC [OnLine Del 1404].
[26] RIT Foundation v Union of India 2022 SCC [OnLine Del 1404].
[27] Bharatiya Nyaya Sanhita 2023, s 63 Exception 2.
