A 2015 BBC REPORT on the victims of marital rape in India starts with the harrowing account by a 25 year old woman, “I was only a toy for him which he thought he could use differently every night. Whenever we had a fight, he would take it out on me in bed. He would not take a no for an answer not even during my periods.”
The act of rape generally attracts a significant amount of outcry from the people at large with sections of society being terribly outraged and nauseated with the recurring occurrence of such ghastly crimes depending upon their severity. But on the contrary when it comes to marital rape there is no such collective outrage nor even concerns expressed by influential sections of society. The same concepts of violation of consent and bodily autonomy forming the core pillars of jurisprudence on the crime of rape undergo a dilution when the exact act of non-consensual sex is placed within the framework of a marriage.
The Supreme Court has before it a batch of petitions on the vires of the marital rape exception. Four arise from the reference made after the Delhi High Court delivered a split verdict in RIT Foundation v. Union of India (2022).
The law on marital rape is outdated
The common law doctrine of coverture was a recognised principle in Britain as per which a female had no independent legal identity and standing. According to the doctrine, her father’s identity mirrored her identity before marriage and post marriage her identity merged with that of her husband, resulting in the absence of recognition of any property rights or bodily autonomy or custody rights. As a result, the recognition of all these rights remained contingent upon the will of the husband. In the United Kingdom, it was much later in 1991 that the House of Lords in the case of R v. R struck down the marital rape exception as it went on to uphold the equality of both the spouses in a marriage. The House of Lords relied on the Scottish decision in S v. H.M. Advocate (1989) which led to the removal of spousal immunity against the offence of rape. This ousted the doctrine of coverture from being recognised as a legitimate common law principle and statutorily being removed in 1994 in the UK.
In India Section 375 of the Indian Penal Code (‘IPC’) and Section 63 of the Bhartiya Nyaya Sanhita (‘BNS’) lay down constitutes as rape. The sections comprise two instances where the act would not be considered to be rape. The first being the carrying out of a medical procedure or intervention and the second being ‘sexual intercourse or sexual acts by a man with his own wife not below 18 years of age’. The second exception fails to address whether the nature of such a sexual intercourse or sexual act by a man with his major wife should be viewed from the axis of it being consensual or non-consensual. The exception has been retained by the BNS which came into force in 2023 replacing the earlier IPC of 1860 in an effort to “decolonise” the criminal laws.
The exception has been retained by the BNS which came into force in 2023 replacing the earlier IPC of 1860 in an effort to “decolonise” the criminal laws.
The challenges that await adjudication in court
The Indian Judiciary has been posed with the question of taking a definitive stance in numerous cases to ascertain if marital rape should be allowed to continue as an exception to the offence of rape or if the same should be criminalised and deemed to be rape.
An important case that forms part of the batch of petitions that the Supreme Court is faced with is Hrishikesh Sahoo v. State of Karnataka wherein a woman had filed complaint against her husband of multiple offences one of which was rape. The Karnataka High Court rejected the argument of Sahoo pertaining to the existence of the marital rape exception and held that “no exception under the law can be so absolute that it becomes license for the commission of a crime against society”. While Sahoo filed an SLP at the Supreme Court which remains pending till date, it became the first case where a chargesheet was successfully filed incorporating, among others, the allegations of rape.
Another important issue arises from the Delhi High Court’s split verdict in the case of RIT Foundation v. Union of India (2022) which effectively captured the core of the conceptual divide prevailing upon the question concerning the criminalisation of marital rape. Justice Rajiv Shakdher in his judgement noted, “Women in most parts of the world are treated as individuals, free to enter into contracts in their own right but when it comes to sexual communion with their husbands, their consent counts for nothing.” He found the classification between married, unmarried and separated couples as unreasonable and arbitrary as it inevitably gave recognition to “only forced sex outside marriage” constituting an actual act of rape whilst simultaneously failing to recognise the same act happening within the bounds of marriage as anything else but rape. Justice C. Hari Shankar on the other hand opined that “sex between a wife and a husband is sacred with it having an emotional element when performed between a husband and wife thereby making the marital bedroom inviolable” and did not accept the idea of terming the husband as the rapist of his wife if he had sex without the latter’s consent as it would be “antithetical to the very institution of marriage”. Justice Shankar also placed the onus of deciding whether or not to criminalise non-consensual sex within marriage squarely within the legislative realm.
Justice Shakdher’s line of ruling while siding with the removal of the marital rape exception recognised the creation of a “firewall” shielding the category of married men or husbands as a result of the exception prevailing in the existing law. This in turn, he noted, led to the exclusion of “nearly one half of the population of the equal protection of laws.” He also supported the removal of the exception on the premises of consent, autonomy and equality. He drew a distinction between “unreasonable” denial of sex as a valid and recognised ground for divorce under Indian family law whilst also not allowing the same to transcend into an “unfettered right to sex without consent.” However, Justice Shankar’s ruling opposing was rooted in the premise of the distinct nature of marital relationships of which a “legitimate expectation of sex” flows noting that not all acts of non-consensual sex can be termed as rape. To support his argument, he drew an unrequited and misplaced parallel with the offence of murder.
The Chhattisgarh High Court in 2025 overturning the order of conviction against a Husband who had been convicted for rape and subsequent death of his wife on account of the prevailing exception of any sexual intercourse or sexual act by a husband with his wife with the latter not being a minor falling into the definition of rape. The deceased wife’s cause of death as per her post-mortem report was rectal perforation and peritonitis with the former resulting due to a tear or hole in the lower end of the large intestine leading to the anus and the latter is a widespread infection and swelling caused by the lining inside of the stomach. The Executive Magistrate who was recording the dying declaration of the wife was even informed by her about her husband’s forceful commission of an unnatural sexual act with her ; however, the dying declaration does not have record of it.
However, in a stark contrast the Gujarat High Court’s judgment this year where a single judge bench rejected the application for anticipatory bail that was filed by a husband observing that spousal intimacy must be consensual in nature in light of the wife accusing her husband and in-laws of rape , unnatural sex and physical assault. According to the FIR the husband along with two other co-accused had given the complainant a false confidence that she would be taken care of after marrying the accused but post the marriage she was subjected to constant demands of dowry coupled with physical, mental and even sexual abuse without her consent. Eventually she was also thrown out of her marital home in 2025 which led to the filing of an FIR.
A resounding argument against the removal of the exception of marital rape is the plausible erosion it would cause to the institution of marriage and that such a victim can avail the usage of other penal provisions along with a particular emphasis on placing reliance on the framework of the Protection of Women from Domestic Violence Act of 2005. Penal provisions pertaining to criminal force and assault against women along with provisions dealing with hurt and grievous hurt fail to capture the severity of a non-consensual sexual intercourse. The act of non-consensual sexual intercourse involving the perpetrator and the victim bound by marital relationship does not condone the act from being termed as rape. Consent is readily recognised as the bedrock of any intimate relationship. But it suddenly starts receding to the background if the same intimate relationship assumes the nature of ‘marital relationship’ involving the spouses.
In the 2005 Act, sexual abuse is defined as inclusive of “any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman”. The definition of sexual abuse when juxtaposed with the exception of acts not constituting rape, particularly the sexual intercourse or any sexual act by a husband with his major wife, lessens the criminal dimension of the abuse inflicted. Additionally with the introduction of Bhartiya Nyaya Sanhita, Section 377 of the IPC has been completely done away with. The provision was read down in the case of Navtej Singh Johar v. Union of India leading to the decriminalisation of consensual sex between consenting same-sex individuals. Earlier, that provision provided a viable opportunity to married women when they were subjected to non-consensual non-penile-vaginal sexual acts by their husbands. However, with the complete omission of Section 377 in BNS, women who have been subjected to non-consensual sex by their husbands find themselves fighting a crushing battle which even the existing legal provisions have failed to identify and address the issue.
Justice Rajiv Shakdher in his judgement noted, “Women in most parts of the world are treated as individuals, free to enter into contracts in their own right but when it comes to sexual communion with their husbands, their consent counts for nothing.”
Legislature’s failure to address marital rape as a heinous offence
Justice Verma Committee was constituted in 2012 as a result of the massive backlash and outrage of the public following the 2012 Delhi Nirbhaya Gang Rape case. The committee comprising Retired Justices J.S. Verma, Leila Seth and Senior Advocate Gopal Subramanium in its recommendation advocated for the removal of the marital rape exception premised on the argument that ‘ a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation’. It also recommended that if the accused and the victim share any intimate relationship even one of marriage the same should not act as a ‘mitigating factor justifying lower sentences for rape’. It stressed on the dissemination of training and awareness programmes at all levels of the criminal justice system extending even to the people outside it making them capable to identify that ‘marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife’. The then UPA government decided to bring forth the Criminal Law (Amendment) Act, 2013 without incorporating the recommendation pertaining to the removal of the marital rape exception. While some parliamentarians have introduced a private member’s bill seeking to criminalise marital rape with the latest being introduced by Congress Member of Parliament Sashi Tharoor, the bills have never really been extensively discussed and debated on the floor of the house.
In 2016, during the Parliament’s budget session, the issue of marital rape was taken up in a question fielded by a Member of Parliament who wanted to know if the Government would scrap the marital rape exception. In a written reply to the Rajya Sabha, the Minister for Women and Child Development Maneka Gandhi wrote, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty.”
Sweta Kothari in her article, “A husband can rape his wife, why can’t our MPs get this?” published in DailyO on May 12, 2016, wrote, “It is abysmal that the minister referred to marital rape as a concept, not a crime, thus suggesting that husbands can subject their wives to any sort of sexual abuse, without their consent and yet cannot be labelled as criminals. Literally classifying and endorsing rape committed by husbands.” Kothari stated that Maneka Gandhi’s reply was verbatim a copy of the written reply put forth by Haribhai Chaudhary, Minister of State for Home Affairs in Parliament in 2015. “The government consistently maintains that the country is far from acknowledging marital rape as a reality, despite alarming evidence of sexual violence at home, gathered by National Family Health Survey (NFHS)”, Kothari remarked with anguish.
She went on to add that 0.6 percent of the sexual violence committed by married men against their wives got reported to the police and those were booked as “cruelty” by the husband. Kothari in her article referred to Minister of State for Home Affairs Kiran Rijiju’s December 2015 statement last year that “the issue of marital rape is very complicated and it is very difficult to explain and describe it. These are of such extreme private nature and no records of any consent are available.”
Kothari flagged that our neighbouring countries like Bhutan and Nepal have outlawed marital rape, there is no reason why India should not do so. The aforementioned figures of National Family Health Survey quoted by Kothari concerning sexual violence committed by married men against their spouses have gone up significantly. As per the National Family Health Survey of 2023-2024 which was released in May, 2026 in the category of Gender Based Violence among the women aged between 18-49 years – 17.5 percent and 24.4 percent of women in the urban and the rural areas respectively have faced spousal violence which has been defined in the survey as any form of physical and/or sexual violence.
Internationally, Poland has the record of being the first country to recognise Marital Rape as a crime as early as 1932 followed by several developed countries like, the UK, the USA, Canada, Australia, France Germany etc. along with various small and developing countries like Ghana, South Africa, Chile, Cuba etc. South Asian countries along with India fall into the category of nations which have not criminalised marital rape till date.
The latest data in the NFHS survey documents the rising incidence of spousal violence against women including sexual violence. Tragically there is complete absence of any legislative and judicial interventions to address the mounting crime. In October 2024, the Union Government in an affidavit before the Supreme Court opposing the criminalization of marital rape in India, argued that the issue is more social than legal, and asserting that any changes to the law require broader consultation with stakeholders and states.
As of now women who have been subjected to non-consensual sex by their husbands are left with no functional legal recourse as they deal with the trifling value accorded to the erasure of their consent and bodily autonomy. The issue of marital rape has been dealt with extensively by the Parliamentary Committee and Law Commission. Yet no government till date has been able to take any major step to address the problem. It only testifies to the patriarchal mindset of the law makers which refuses to treat rape within confines of matrimony as an act of crime rooted in domination, imposition and false perception that men as husbands within framework of marriage are inherently superior to their wives and so their sexual act even if carried out in violation of consent of their wives could not be treated as rape.