Legal Narrative
ABSTRACT
Intimate Partner Violence (IPV), which refers to physical, sexual or psychological abuse of a person by their partner, remains a critical public health issue for mental health professionals. Marital Rape, the sexual violation of a spouse by the other, remains a debatable issue in Indian Legal Framework. This article addresses the historical background, legislative developments, and judicial interpretation of marital rape. It also studies what reforms can be brought in India by doing comparative study with the laws of other countries.
A detailed analysis of relevant laws, recent judgements, landmark cases and excerpts from the researches, has been done which shows the complexities of addressing marital rape in India. This article studies the socio-cultural factors that influence and impact society in the context of marital rape, evaluates the effectiveness of existing relevant laws, and discusses the need for legislative reform to provide requisite protection to victims.
KEYWORDS: Intimate Partner Violence (IPV), Marital Rape Exception, Spousal Rape, Women’s Autonomy, Marital Consent, Gender Justice
INTRODUCTION AND MEANING OF MARITAL RAPE
Before understanding marital rape, we must first understand what rape is. Under the Bharatiya Nyaya Sanhita (BNS), 2023, rape1is defined as a man performing specific sexual acts on a woman without her clear consent or by using force, fear, trickery, or intoxication (subject to conditions specified therein). It also strictly includes any sexual act with a girl under 18 years old, even if she agrees. Furthermore, the same section talks about marital rape, according to which “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”2
Love, respect and mutual consent should be the foundation of a marriage. Marriage itself does not create a permanent consent to sexual activity. When sexual relationships are created without the consent of one spouse, it raises many questions about the dignity, bodily autonomy, and the rights of individuals within the marriage. Marital rape which is also known as spousal rape, is the act of sexual intercourse within a legally recognized marriage without the consent of one's spouse. This not only results in immediate physical harm but also contributes to enduring psychological distress for the victim. Various legislations in India address violence against women, such as dowry-related offenses, domestic violence, and cruelty. However, one notable absence is the criminalization of marital rape.
HISTORICAL BACKGROUND
Historically, women have often been victims of patriarchy. In the context of marriage, women were frequently seen as the property of their husbands. Women did not have a right to take any financial decision. They were
• Pre IPC Era: The law regarding the legality of non-consensual sexual acts in marriage before the commencement of Indian Penal Code, 1860 was guided by the following principles:
1. Doctrine of Coverture3: The term Coverture is a French word which means ‘a covering’. The legal doctrine of coverture was created in England during the Middle Ages. Under coverture, a woman is treated as her husband’s property, her identity was her husband’s, and men treated women like chattel.
2. Doctrine of Implied Consent: This doctrine is also known as Hale’s Doctrine, which was originated by Matthew Hale in 1736. According to this doctrine, a husband could not be accused of raping his wife. He argued that the marriage grants irrevocable sexual consent that a woman can never legally withdraw.
• Marital Rape Exception and Indian Penal Code, 1860:
The Indian Penal Code, 1860 does not consider sexual intercourse by the husband as rape if the wife is above the prescribed age. When the IPC was enacted in 1860, the age threshold for marital rape was 10 years, it was later amended several times and finally stood at 15 years. In 2017, in the case of Independent Thought v. UOI4, the SC read down the exception 2 to Section 375 IPC and raised the age from 15 to 18 years.
So, the IPC retained a marital rape exception for adult wives, this implied that marital status was a significant factor in deciding whether a particular non-consensual sexual intercourse could be considered rape or not.
MARITAL RAPE LAWS IN INDIA
India has made significant social, legal and constitutional progress, marital rape is still decriminalized under Indian criminal law. While there are many laws that criminalize atrocities against women, such as domestic violence, sexual assault etc, but the law still does not criminalize non-consensual sexual intercourse between an adult woman and her husband.
• Position under Bharatiya Nyaya Sanhita, 2023
The aim of implementation of the Bharatiya Nyaya Sanhita, 2023 (BNS) is to replace the colonial Indian Penal Code, 1860. It is implemented to eliminate the British era mindset from the Indian legal system and introduce a modern and victim centric approach. But when it comes to bodily autonomy for married women, BNS fails as it does not consider a non-consensual sexual intercourse between husband and wife as offence within a marriage where wife is adult.
Exception 2 of Section 63, of Bharatiya Nyaya Sanhita, 2023, provides immunity to a husband from marital rape whose wife is adult. This provision is contradictory to the main aim of the BNS as Hale's principle is still in existence.
Although, Section 675of the code criminalizes non-consensual sex by a husband with a separated wife (punishable by 2 to 7 years), subject to the conditions specified therein.
• Constitution of India and Marital Rape
Article 14 and Article 21 of the Indian Constitution guarantee every person the right to equality, equal protection of law, life, and personal liberty. Some men consider their wives as property disregarding the fact that women also possess equal rights and they have their own bodily autonomy.
1) Article 146: This Article guarantees the fundamental right to equality and equal protection of the laws to everyone within India. But current criminal law fails to address the discrimination faced by victims of marital rape. Marital rape is essentially the same as rape, the only difference being the marital status of the
victim. Consequently, marital rape also violates two tests required for a valid reasonable classification of Article 14, namely intelligible differentia and rational nexus, because it fails to provide a reasonable distinction between a married and
unmarried women.
2) Article 217: This Article of the Constitution says that “No person shall be deprived of his life or personal liberty except according to a procedure established by law”. In the case of Kharak Singh v. State of U.P.8, the Honourable Supreme Court held that the term “Life” used here is “something more than mere animal existence”. By judicial interpretation, the SC has expanded the scope of Article 21 over the time and added many new dimensions to the term “ Right to Life”. It was held by the Court that, “Right to Life also includes the right to live a healthy and dignified life,” in the case of C.E.S.C. Ltd. v. Subhash Chandra.
JUDICIAL ACTIVISM AND ROLE OF COURTS
1. Independent Thought v. Union of India10: Supreme Court read down Exception 2 to exclude minor wives (below 18 years), holding that it violated the Constitution and the Protection of Children from Sexual Offences (POCSO) Act, 2012. The Court emphasized that: "Merely because a girl below 18 years of age is married, her husband can't violate her bodily integrity and dignity through non-consensual sex11."
2. RIT Foundation v. Union of India 12: A writ petition is filed before the Delhi High Court in 2015 challenging the constitutional validity of Exception 2 to Section 375 of the IPC, which provides an exception for marital rape.
3. State of Maharashtra v. Madhukar Narayan Mardikar13: It was held by the Court that every woman has the right to privacy which cannot be violated.
4. Shri Bodhisattwa Gautam v. Ms. Subhra Chakraborty14: The court observed that rape, more than a sexual offence, is an act of aggression that degrades, humiliates and shames the woman at large.
5. Justice K.S. Puttaswamy v. Union of India15: It was held that right to privacy is a Fundamental right. A woman is also entitled to privacy, and no one has the right to invade her privacy.
COMPARATIVE ANALYSIS
Marital rape laws vary from country to country and have changed over time. Marital rape was initially kept out of the scope of the law, but society's perspective changed over time, and new laws were enacted and the old ones were amended. Marital rape is recognized as a criminal offense in nearly 150 countries worldwide16, either through amendments to existing laws or the implementation of new ones.
United Kingdom: Earlier in England, the doctrine of Hale was prevalent, according to which it was believed that a husband could not rape his wife. But in the case of R v. R17, the doctrine of Hale was completely abolished and marital rape started being considered a crime. Later on, Parliament of UK codified the Sexual Offences Act, 2003, which does not provide any exemption based on marital status.
United States of America: In the case of People v. Liberta18 in the New York Court, it was said that "There is no justification for distinguishing between rape and marital rape, and marriage does not license a husband to rape his wife." After this judgement, all 50 states of the United States have made marital rape a crime.
Other Jurisdiction: Many countries have criminalized marital rape. Marital rape was first criminalized in Poland in 1932 and then in Australia in 1976. Since 1980, many countries like South Africa, Ireland, Israel, Ghana etc. have also criminalized marital rape. In 2002, Nepal also criminalized marital rape.
This comparative study therefore provides an important base for examining possible legal reforms in India and how India’s legal system should respond to non-consensual sexual intercourse within a marriage.
SUGGESTIONS
• Exception 2 of Sec 63 BNS should be reconsidered and legislative reform should also ensure laws to provide legal protection to survivors disregarding the age and marital status of a woman.
• Marital rape should be treated like rape and survivors should be given equal protection regardless of their marital status.
• The matrimonial law should be amended to make marital rape a ground for divorce so that the survivor can end their marriage and avoid further harm and trauma. • NGOs and the government should work together to promote awareness programs on the effects of marital rape, healthy married life, consent and gender equality. • The government should provide training to law enforcement, judiciary, and health care professionals so that marital rape cases can be handled promptly and effectively.
CONCLUSION
Criminalisation of marital rape has been a topic of debate in India. It is essential to change the legal blocks and society's perspective that fuel this violence. We can change laws and patriarchal norms to create a much safer and impartial society where consent and mutual respect will be the foundation for a healthy relationship between a man and a woman within a marriage. It has become a debatable issue between personal autonomy, legal equality and societal norms.
Many countries have criminalized marital rape while India still provides an exemption to the husband. Courts have ruled in several cases in favour of consent, but uncertainty still exists regarding marital rape. For a very long time, women have been silently enduring sexual assault by their own husbands in their own homes without any legal support. By criminalizing marital rape, we can give them the right to justice.
FOOTNOTES
* The author is a practising Advocate based in Gorakhpur, Uttar Pradesh.
1Bharatiya Nyaya Sanhita, Act No. 45 of 2023, Section 63.
2 Bharatiya Nyaya Sanhita, Act No. 45 of 2023, Section 63, Exception 2.
3 Coverture Definition and Overview, Study.com, https://study.com/academy/lesson/what-is-coverture definition-laws.html#section---CovertureDefinitionAndOverview (last visited Sept 20, 2026).
4Independent Thought v. Union of India, (2017) 10 SCC 800, https://indiankanoon.org/doc/87705010/ (last visited Sept 21, 2026).
5 Bharatiya Nyaya Sanhita, Act No. 45 of 2023, Section 67.
6 The Constitution of India, Article 14.
7 The Constitution of India, Article 21.
8 AIR 1963 SC 1295, https://indiankanoon.org/doc/619152/ (last visited Sept 24, 2026).
9 AIR (1992) 1 SCC 441.
10 Supra note 4
11 Marital Rape and Bharatiya Nyaya Sanhita: Legal Silence and Implications, papers.ssrn.com, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6466558 (last visited Sept 24, 2026). 12 AIR 2022 SCC Online Del 1404.
13 AIR 1991 SC 207
14 AIR 1196 SC 922
15 AIR (2017) 10 SCC 1
16 Marital Rape Laws by Country, Wikipedia, https://en.wikipedia.org/wiki/Marital_rape_laws_by_country (last visited Sept. 20, 2026).
17 (1992) 1 AC 599
18 64 N.Y. 2d 152 (N.Y. 1984)
