Silent Victims, Silent Law: The Urgent Need to Criminalise Marital Rape in India

Silent Victims, Silent Law: The Urgent Need to Criminalise Marital Rape in India

By Debolina Adhikary

Abstract

Marital rape, non-consensual sexual intercourse by a husband upon his wife, remains one of the most pervasive yet legally ignored forms of sexual violence in India. Despite growing judicial awareness and global recognition of women’s rights, the marital rape exception under Section 375 IPC, now carried forward under Section 63 of the Bharatiya Nyaya Sanhita, 2023, continues to shield husbands from prosecution, reflecting a legal system still deeply entrenched in colonial-era patriarchy. This exception not only draws an unjustifiable line between married and unmarried women but also sits uncomfortably against the guarantees of equality, dignity, and personal liberty under Articles 14, 15, and 21 of the Indian Constitution. The legislative silence on this issue points to a broader failure in acknowledging that consent within marriage is not permanent and unconditional. Through a doctrinal and comparative analysis, this paper examines key judicial pronouncements, the 172nd Law Commission Report, and the Justice Verma Committee findings, while drawing comparisons with countries like the UK, USA, and Australia that have long criminalized marital rape.

The paper concludes that criminalizing marital rape is not just a legal reform; it is a constitutional and moral necessity.

I. Introduction

The idea of marriage being a deeply respected institution, as held by mainstream Indian society, often turns out to be a myth for countless women who silently endure sexual violence within its boundaries. Behind closed doors, within the very institution that society holds so sacred, a form of violence exists that the law has consistently refused to acknowledge: marital rape. Broadly understood as non-consensual sexual intercourse between spouses, it has remained under the shadow of legal uncertainty in India for decades, largely because marriage itself has been used as a shield to justify what would otherwise be a criminal offense.

Marital rape, simply put, is when a husband forces sexual intercourse upon his wife without her consent. What makes this particularly troubling in the Indian context is that the law does not treat it as a crime. The assumption has always been that a woman, once married, gives her permanent consent to sexual relations with her husband. This idea, rooted in a 17th-century principle[1] that has long been abandoned by most countries, continues to shape Indian law even today.

The consequences of this legal gap are not merely technical. Women who experience marital rape suffer serious physical and psychological harm, including anxiety, depression, fear, and trauma that often lasts a lifetime. Yet the law offers them no recognition and no remedy.

What is perhaps most disturbing is that this is not an oversight. It is a deliberate choice, one that places the institution of marriage above the dignity, bodily integrity, and fundamental rights of the woman within it. This paper seeks to examine that choice and question whether it can still be justified.

II. Historical Background of Marital Rape

The history of marital rape in India cannot be understood without looking at how women have been treated across different periods of time. In ancient India, women were largely seen as possessions, first dependent on their fathers, then their husbands, and later their sons. Ancient texts like the Manusmriti[2] reinforced this deeply patriarchal setup, where a woman’s primary role was confined to household duties and complete submission to her husband’s wishes. The idea that a woman could refuse her husband was simply not recognized.

This thinking was carried forward into the medieval period, where foreign invasions and religious practices further pushed women into lives of seclusion and servitude. Practices like purdah, sati, and child marriage became common, and women’s independence was virtually nonexistent. When the British colonized India, the Indian Penal Code of 1860[3] was drafted under Lord Macaulay, heavily influenced by Victorian-era patriarchal values. It was built on the infamous principle laid down by English jurist Sir Matthew Hale, that a husband cannot be guilty of raping his wife since marriage implied permanent and irrevocable consent. This became the foundation of Exception 2 to Section 375 IPC.

Over time, feminist movements and human rights organizations globally began challenging these outdated ideas. Countries like the United Kingdom, United States, and Australia eventually criminalized marital rape. India, however, has continued to hold on to this colonial-era exception even under the newly enacted Bharatiya Nyaya Sanhita, 2023.[4]

III. Types of Marital Rape

Marital rape does not always look the same. It takes different forms depending on the nature of force or pressure used by the perpetrator. In Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018),[5] the court examined and recognized the following types of marital rape commonly found in society:

1. Forceful or Violent Marital Rape: This is the most visible and recognized form of marital rape. Here, the husband uses direct physical force, such as beating, overpowering, or threatening with weapons, to compel his wife into sexual intercourse against her will.

2. Coercive Marital Rape: This form does not always involve physical violence. Instead, the husband uses emotional pressure, manipulation, or psychological threats to obtain sexual relations without the wife’s genuine and free consent. Because there are no visible injuries, this form often goes unnoticed and unreported.

3. Marital Rape During Intoxication or Sleep: This occurs when a husband engages in sexual activity with his wife while she is asleep, unconscious, or in a state where she is unable to give informed and voluntary consent due to intoxication or any other such condition.

4. Sadistic or Cruel Marital Rape: This is perhaps the most disturbing form, where sexual violence is combined with acts of sadism, humiliation, and degradation. It is intended to cause physical pain, fear, and shame to the wife and is often closely linked to patterns of domestic abuse.

5. Reproductive Coercion: This form involves a husband forcing sexual intercourse specifically to cause pregnancy against the wife’s wishes, or deliberately preventing her from using contraception, taking away her right to make decisions about her own body and reproductive health.

IV. Current Legal Status of Marital Rape in India

Sexual violence within marriage remains one of the most ignored and least discussed forms of abuse in India. While forcing sexual intercourse upon any woman without her consent is treated as rape under the Indian Penal Code, the law makes a glaring exception when the woman happens to be a wife. If a husband forces himself upon his wife without her consent, Indian law simply does not call it a crime. Marital rape, in that sense, falls completely outside the boundaries of criminal law in India.

The central government has on multiple occasions defended this position, arguing that what works in western countries cannot be blindly applied to India. The government has maintained that factors like the education level of women, their economic dependence, and widespread poverty must be considered before any such step is taken. The Supreme Court also noted in 2017 that rape committed within a marital relationship would not be treated as a criminal offence,[6] and the government stood firmly behind Exception 2 of Section 375 IPC,[7] stating that it exists to protect the dignity of the marital relationship.

However, not all courts have taken the same view. The Kerala High Court, in a significant ruling, held that treating a wife’s body as one’s personal property and having physical relations without her consent amounts to marital rape and further recognized it as a valid ground for divorce.[8]

Under the Hindu Marriage Act as well,[9] refusing physical relations has been treated as cruelty, allowing the affected spouse to seek divorce. Section 375 of the IPC and Section 63(2) of the Bharatiya Nyaya Sanhita, 2023, do provide some protection, but only for wives who are below the age of 18, leaving adult married women entirely without criminal remedy.

V. 42nd Law Commission Report, 1971

The 42nd Law Commission Report of 1971 was the first government report in India to formally address the marital rape exception under the IPC. The report suggested that the exception should not apply in cases where the husband and wife were judicially separated, since the marriage exists only in a technical sense and the couple is no longer living together.[10] However, in doing so, the report essentially kept the theory of implied consent alive, holding that a husband forcing himself upon his wife was acceptable within a subsisting marriage, but not when they were legally separated.

This suggestion was later incorporated into the IPC through the Criminal Law Amendment Act,[11] which provided that any husband who has sexual intercourse with his wife living separately, whether under a decree of separation or otherwise, without her consent, shall be punishable with imprisonment of not less than two years, which may extend to seven years, along with a fine.

VI. 172nd Law Commission Report, 2000

It was under this report that the question of marital rape was directly placed before the commission for consideration for the first time. The opponents of the marital rape exception raised a straightforward argument: if other aspects of a marital relationship could be regulated under criminal law, then why should non-consensual sexual intercourse forced by a husband upon his wife be treated differently? However, the proponents of the exception rejected this argument, expressing concern that criminalizing marital rape would amount to excessive interference in the institution of marriage. The report also highlighted the reluctance of both the legislature and the wider intellectual community[12] to treat forced sex within marriage as a criminal act, largely because Hindu marriage is viewed not just as a legal contract but as a religious sacrament, and there was a genuine fear that such a provision could threaten the institution altogether.

VII. Justice J.S. Verma Committee Report on Amendments to Criminal Law, 2013

The Justice J.S. Verma Committee Report came as a direct response to the growing outrage following the Nirbhaya case of 2012. The report, along with the Usha Mehra Committee report, played a significant role in shaping the Criminal Law Amendment Act, 2013.[13]

What made this report different from the previous Law Commission reports was that it directly and firmly recommended the criminalization of marital rape. It acknowledged that the idea of a wife being her husband’s property was an archaic notion with no place in modern law. Drawing from Lord Keith’s observation, the committee emphasized that marriage should be seen as a partnership between equals, not a relationship where a wife is expected to be completely subservient to her husband.

The report also looked at countries like Canada, Australia, and South Africa, which had already criminalized marital rape, and noted that the nature of rape does not change simply because of the relationship between the victim and the perpetrator. It further stressed that consent cannot be assumed from the mere fact of being married. Despite these strong and well-reasoned recommendations, the Criminal Law Amendment Act, 2013 ultimately did not criminalize marital rape, a decision that continues to be widely criticized to this day.

VIII. 167th Report of the Parliamentary Standing Committee on the Criminal Law Amendment Bill, 2012

The 167th Parliamentary Standing Committee Report revealed a divided opinion among its members on the issue of marital rape. Some members believed that wives should have the right to raise the issue[14] and that consent within marriage cannot be treated as permanent. However, the opposing members argued that criminalizing marital rape would threaten the institution of marriage and put the family system under great stress.

They further suggested that such cases could already be dealt with under Section 498A of the IPC[15] and the Domestic Violence Act, 2005,[16] without the need for a separate criminal provision. This division within the committee itself reflects how deeply rooted the resistance to criminalizing marital rape is, where once again the protection of marriage as an institution was prioritized over the dignity and rights of the woman within it.

IX. Case Laws on Marital Rape in India

1. State of Karnataka v. Krishnappa (2000)[17]
The Supreme Court observed that sexual violence, regardless of the relationship between the parties, is an unlawful intrusion into a woman’s right to privacy and bodily integrity. The Court emphasized that such acts are incompatible with the constitutional promise of equality and human dignity.

2. Independent Thought v. Union of India (2017)[18]
The Supreme Court struck down Exception 2 to Section 375 IPC to the extent that it applied to wives below 18 years, holding that sexual intercourse with a married girl below 18 years amounts to rape. The Court made it clear that marriage cannot be used as a defense for sexual assault, laying an important foundation for questioning the broader marital rape exemption.

3. Suchita Srivastava v. Chandigarh Administration (2009)[19]
The Court recognized reproductive autonomy and bodily integrity as part of a woman’s right to personal liberty under Article 21, strengthening the constitutional argument against forced sexual relations within marriage.

4. Navtej Singh Johar v. Union of India (2018)[20] and Joseph Shine v. Union of India (2019)[21]
In both these cases, the Supreme Court reiterated that constitutional morality must prevail over social or religious morality, emphasizing that personal autonomy, consent, and dignity form the core of fundamental rights.

5. Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018)[22]
The Court examined whether a husband forcing his wife into oral sex could amount to rape under Section 376 IPC. It firmly stated that fear of false complaints cannot justify ignoring marital rape, and that forcing a wife into sexual intercourse does not become acceptable simply on account of a valid marriage.

6. RIT Foundation v. Union of India (2022)[23]
This ongoing case before the Delhi High Court involves petitions challenging the constitutional validity of the marital rape exception under Section 375 IPC. The petitioners argued that this exception prioritizes marriage over the individual rights of the wife, raising critical questions around Articles 14 and 21 and the meaning of consent within marriage.

X. Comparative Legal Perspective on Marital Rape

Across the world, most democratic nations have recognized that marriage cannot be used as a defense for sexual violence. India, however, continues to retain the marital rape exception under Section 63 of the Bharatiya Nyaya Sanhita, 2023, placing it at odds with both its constitutional values and international human rights standards.

United Kingdom
In the landmark case of R v. R (1991), the House of Lords held that marriage does not imply permanent consent to sexual intercourse.[24] Following this, the Criminal Justice and Public Order Act, 1994 formally abolished marital rape immunity in the UK.[25]

United States
By 1993, all fifty states had criminalized marital rape. In People v. Liberta (1984),[26] the court held that the marital exemption violated the Equal Protection Clause, declaring that a marital relationship cannot justify violence or unequal treatment before the law.

Canada
Canada removed the marital rape exemption through the Criminal Law Amendment Act, 1983, introducing gender-neutral definitions of sexual assault, guided by the Canadian Charter of Rights and Freedoms, 1982.[27]

South Africa
South Africa explicitly criminalized marital rape through the Criminal Law Amendment Act, 2007,[28] built on constitutional values of dignity, freedom, and equality.[29]

Australia and Nepal
Australia held in R v. L (1991) that the presumption of consent within marriage is incompatible with human rights.[30] Nepal’s Supreme Court similarly struck down the marital exemption in Forum for Women, Law and Development v. His Majesty’s Government (2002), declaring it unconstitutional.[31]

International Framework
Both CEDAW[32] and the Istanbul Convention, 2011[33] require signatory states to criminalize all non-consensual sexual acts within marriage, an obligation India continues to fall short of meeting.

India’s Position
The legislature has repeatedly rejected proposals to criminalize marital rape, citing concerns that it would undermine marriage, that marriage implies consent, and that it would create burden-of-proof difficulties. These arguments have been widely criticized as outdated and unconstitutional. The legislative debate on this issue remains ongoing, leaving countless married women without criminal remedy for one of the most violating forms of abuse they can experience.

XI. Why Marital Rape Should Be Criminalized in India

1. Violation of Article 14 of the Indian Constitution: Article 14 of the Indian Constitution guarantees that every person is equal before the law and entitled to equal protection. However, Exception 2 of Section 375 IPC directly contradicts this guarantee by creating two separate classes of women: married and unmarried, offering protection from rape only to the latter.

When the IPC was drafted in 1860,[34] married women were not considered independent legal persons; they were seen as extensions of their husbands, with little to no individual rights. While the law has evolved significantly since then, with legislations like the Protection of Women from Domestic Violence Act, 2005[35] and the Sexual Harassment of Women at Workplace Act, 2013[36] recognizing women as equal and independent individuals, the marital rape exception continues to carry the same outdated thinking that existed over 160 years ago.

The Supreme Court, in cases like Budhan Choudhary v. State of Bihar[37] and State of West Bengal v. Anwar Ali Sarkar,[38] has consistently held that any law treating people differently must have a reasonable and justifiable basis. The distinction created by Exception 2, where the same act is a crime against an unmarried woman but not against a wife, has no such reasonable basis. It simply enables husbands to force sexual relations, knowing fully well that the law will not hold them accountable.

2. Breach of Article 21 of the Indian Constitution: Exception 2 to Section 375 IPC also stands in direct conflict with Article 21, which protects every person’s right to life and personal liberty. The Supreme Court has, over the years, expanded the meaning of this right to include privacy, health, dignity, and the right to refuse unwanted sexual activity.[39]

A married woman forced into sexual intercourse against her will is being denied each one of these rights: her dignity, her privacy, and her freedom to live on her own terms. The fact that she is married does not reduce the violation; it makes it worse, because she has no legal remedy to seek justice.

XII. Conclusion

Marital rape remains one of the most serious yet deliberately ignored violations of women’s rights within the institution of marriage. The continued existence of the marital rape exception directly contradicts Articles 14, 15, and 21 of the Constitution, reflecting a legal system that places the sanctity of marriage above the dignity and bodily autonomy of the woman within it. Criminalizing marital rape is not an attack on marriage; it is a reaffirmation of consent, mutual respect, and human dignity.

In terms of suggestions, the marital rape exception must be repealed, and the marital relationship should neither serve as a valid defense nor as a mitigating factor during sentencing. It must also be recognized as a ground for divorce. Women must be encouraged to speak out, and for that, shelter homes, legal aid, and helplines must be made accessible to survivors. The judiciary and law enforcement must be trained to handle such cases sensitively. Ultimately, education and awareness are essential to challenge the deeply rooted belief that marriage implies permanent consent.

References

[1] Sir Matthew Hale, History of the Pleas of the Crown (1736).
[2] Shreyashi Ghosh, ‘Manusmriti: The Ultimate Guide to Becoming a Good Woman’, Feminism in India (January 11, 2018).
[3] Indian Penal Code, 1860, s 375, Exception 2.
[4] Bharatiya Nyaya Sanhita, 2023, s 63.
[5] Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018) 11 SCC 20.
[6] Independent Thought v. Union of India (2017) 10 SCC 800. 
[7] Indian Penal Code, 1860, s 375, Exception 2.
[8] Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018) 11 SCC 20.
[9] Hindu Marriage Act, 1955, s 13.
[10] Law Commission of India, ’42nd Report on Indian Penal Code, 1860′, 277 (June 1971).
[11] The Criminal Law Amendment Act, 2013, No. 13.
[12] Law Commission of India, ‘172nd Report on Review of the Rape Laws’, 23 (March 2000).
[13] Criminal Law (Amendment) Act, No. 13 of 2013 (India); Justice J.S. Verma Committee, Report on Amendments to Criminal Law (January 2013).
[14] Department Related Parliamentary Standing Committee on Home Affairs, ‘167th Parliamentary Committee Report on the Criminal Law (Amendment) Bill, 2012’, 26 (March 2013).
[15] Indian Penal Code, 1860, s 498A.
[16] The Protection of Women from Domestic Violence Act, 2005.
[17] State of Karnataka v. Krishnappa (2000) 4 SCC 75.
[18] Independent Thought v. Union of India (2017) 10 SCC 800.
[19] Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1.
[20] Navtej Singh Johar v. Union of India (2018) 10 SCC 1.
[21] Joseph Shine v. Union of India (2019) 3 SCC 39.
[22] Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018) 11 SCC 20.
[23] RIT Foundation v. Union of India, WP(C) 284/2015 (Delhi HC, 2022).
[24] R v. R [1991] 4 All ER 481 (HL).
[25] Criminal Justice and Public Order Act, 1994 (UK).
[26] People v. Liberta, 64 NY 2d 152 (1984).
[27] Canadian Charter of Rights and Freedoms, 1982, s 15.
[28] Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (South Africa).
[29] S v. Jordan 2002 (6) SA 642 (CC).
[30] R v. L (1991) 174 CLR 379 (HCA).
[31] Forum for Women, Law and Development v. His Majesty’s Government (2002) (Nepal SC).
[32] Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW).
[33] Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention) (adopted 11 May 2011, entered into force 1 August 2014).
[34] The Indian Penal Code was enacted on October 6, 1860 during British colonial rule and came into force on January 1, 1862.
[35] The Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India).
[36] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, No. 14, Acts of Parliament, 2013 (India).
[37] Budhan Choudhary v. State of Bihar, AIR 1955 SC 191 (India).
[38] State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 (India).
[39] K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 (India).