Breaking the Silence: The Case for Criminalising Marital Rape in India

“Consent is the cornerstone of any sexual relationship. To deny it within marriage is to deny a woman her basic humanity.”

India’s criminal justice system has undergone significant changes in addressing sexual violence, yet one area remains persistently shielded from legal scrutiny i.e., marital rape. Despite growing debates on gender rights, Indian criminal law retains an exception under Section 375 of the Indian Penal Code (IPC), now continued under the Bharatiya Nyaya Sanhita which provides that sexual intercourse by a man with his wife is not rape if the wife is above eighteen years of age.

The rationale for this exception stems from colonial era English law, which presumed irrevocable consent within marriage, a presumption long discarded by many common law jurisdictions. In R v. R, the House of Lords held that such immunity was a legal fiction incompatible with modern notions of bodily autonomy. Nepal and Bhutan have followed suit, removing similar exceptions. India, however, continues to grapple with this conflict between tradition and constitutional values.

At its core, this debate engages Article 21 of the Constitution, which guarantees the right to life and personal liberty. In Suchita Srivastava v. Chandigarh Administration, the Supreme Court affirmed reproductive autonomy as part of personal liberty. If the law recognises a woman’s right to choose motherhood, it logically follows that she must have the right to refuse unwanted sexual intercourse, regardless of marital status. The marital rape exception reduces her body to a conjugal commodity - owned, not respected.

However, the issue is not purely constitutional. It intersects with other branches of family law. Restitution of conjugal rights, recognised under the Hindu Marriage Act, 1955, creates a legal expectation of cohabitation and sexual relations between spouses. Denial of conjugal relations can be a ground for divorce. This is an apparent contradiction.

Unlike stranger rape, proving lack of consent in an intimate setting is uniquely difficult. The National Crime Records Bureau (NCRB) data for 2022 shows that around 87 rape cases are reported daily, but nearly 89% of perpetrators are known to the victim. Marital rape often goes unreported due to fear, stigma, and lack of family support. The National Family Health Survey (NFHS-5), 2019-21 reveals that 31% of married women face domestic violence, yet only 14-15% ever seek help. In rape cases that do reach trial, conviction rates remain low, only about 27-28%. These figures show the procedural and evidentiary hurdles that must be addressed if marital rape is criminalised.

The Justice Verma Committee Report (2013), formed in the wake of the Nirbhaya case, unequivocally recommended removing the marital rape exception. The committee wrote: “The exemption for marital rape stems from a long-outdated notion of marriage which regards wives as no more than the property of their husbands.” The Committee noted that the exception contradicts India’s international obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Despite this, legislative inertia has persisted.

Some critics argue that criminalising marital rape could destabilise families and be misused during matrimonial disputes. While misuse of any law is possible, that alone cannot justify blanket immunity for an act that, in every other context, is a grave offence. Courts can, and must, develop careful guidelines, akin to safeguards in other sensitive offences, to balance genuine prosecution with protection against misuse. 

Encouragingly, the judiciary has shown willingness to dismantle archaic notions in personal law. In Joseph Shine v. Union of India, the Supreme Court struck down Section 497 IPC, calling it discriminatory and patriarchal. The logic should apply to marital rape too. Marriage should not be considered as an irrevocable consent to sexual acts. Therefore, with regard to a question whether the complainant consented to sexual activity, the relationship between the victim and the accused should not be relevant. 

Recent developments suggest an expanding horizon for Article 21. The Supreme Court’s interpretation of the right to privacy in K.S. Puttaswamy v. Union of India also reinforces bodily autonomy as an essential facet of liberty. These principles strengthen the argument that the marital rape exception is constitutionally unsustainable.

Talk to any survivor and we realise marital rape isn’t an abstract debate. Its raw pain hidden behind closed doors. The time has come for India to listen to its own constitutional conscience. Consent must be universal, not conditional upon a marriage certificate. Recognising marital rape as a crime is not an attack on marriage but an affirmation that marriage must be built on mutual respect, not forced submission. Laws are not merely words on paper. They send a message about what a society stands for. India must decide, do we stand for the bodily autonomy of all women, or do we cling to a feudal past that treats wives as chattel?

Marital rape is not merely a legal question but a test of India’s commitment to equality and human dignity. The law must protect a woman’s right to say no — no matter who stands on the other side of that door.

References

1.     R v. R [1992] 1 AC 599.

2.      Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.

3.     Section 9, The Hindu Marriage Act, 1955.

4.     Joseph Shine v. Union of India, (2019) 3 SCC 39.

5.     K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.

This article is authored by Sreshta Ann John, who was among the Top 40 performers in the Constitution Law Quiz Competition organized by Lets Learn Law.