Government claims that the 'decolonised' criminal laws, existing domestic violence, marriage laws sufficiently address marital rape. Here is why it is wrong.
ON December 11, 2017, a man in Chhattisgarh forced his wife into ‘unnatural sex’ against her will, causing her immense pain and leading to her death just hours later. The trial court in Bastar’s Jagdalpur, relying on her dying declaration and the post-mortem report, sentenced him to ten years in prison under Sections 304, 375, and 377 of the now repealed Indian Penal Code. But on February 12, 2025, the case took a shocking turn when Justice Narendra Kumar Vyas of the Chhattisgarh High Court overturned the conviction and acquitted the man reasoning that marital rape was not, per se, a crime in India. 75 years after the Constitution’s adoption, wherein Article 13, by the stroke of its print, declared obsolete all colonial legislations in effect at the time, the marital rape exception in India’s criminal code continues to dictate the everyday legality experienced by women across the country.
According to the Gender Development Index, India ranks 134th out of 193 countries, reflecting the dire state of women’s social and economic well-being. Sparsing through the National Crime Records Bureau Report 2022, one is confronted with the immense gravity of the situation, as the report reveals that rape cases alone account for 8.6 percent of all IPC crimes against women. Yet, the more alarming reality is that 96.6 percent of rape offenders are known to the victims, exposing the deeply entrenched issue of sexual violence within familiar spaces. The pressure to ‘compromise’ is equally staggering. 63 percent of all settled cases are only of cruelty by husbands or their relatives, turning justice into mere numbers. Further reinforcing this grim reality, the India National Family Health Survey (2019-21) found that 95.7 percent of married women aged 18-49 who reported experiencing sexual violence identified their current or former husbands as the perpetrators. Yet, the demand to criminalize marital rape remains unfulfilled, upheld by the archaic notion of implied consent, a legal fiction introduced by Sir Matthew Hale centuries ago.
The Figure below depicts the relationships between the victims of rape and the perpetrators, as sourced from the government’s data.
Has the BNS truly decolonised criminal justice for women?
In July 2024, the new substantive criminal code of India, the Bharatiya Nyaya Sanhita, replaced the erstwhile IPC, hailed as an intentful breakage from the colonial baggages of our legal system. Contradicting this overt claim of decolonisation was the fact that the exception to Section 375 of the IPC shielding marital rape remained intact under Section 63 of the BNS.
“There have been some advancements in the Bharatiya Nyaya Sanhita, but it has also raised serious concerns," explained Aditya Dubey, an advocate practising in the Jharkhand High Court. Earlier, under Exception 2 of Section 375 of the IPC, sexual intercourse by a man with his wife was not considered rape if she was 15 years or older. However, in Independent Thought v. Union of India (2017), the Supreme Court raised this age threshold to 18 years, recognizing marital intercourse with a minor wife as statutory rape. This judgment was later codified in Section 63 of the BNS, extending protection to minor wives aged 15 to 18, even when the marriage itself is illegal.
Dubey explained, however, that “ambiguity persists in cases where a minor under 18 is subjected to rape within marriage.” He remarked that the marital rape exception created a legal dilemma, “Should the marriage be invalidated first to treat it as rape, given the continued prevalence of child marriages, or does the exemption shield the offender from prosecution altogether?”
As the exception remained, one of the government's key claims was that victims could seek justice under the Protection of Women from Domestic Violence Act, 2005 (‘DV Act’). However, that law deals more primarily with civil matters rather than criminal offenses, offering only limited relief in cases of marital rape. Under Section 3, the DV Act considers marital rape only if it involves life-threatening or grievously hurtful conduct. This means that if non-consensual sexual intercourse does not meet this criterion, the wife cannot seek relief under the Act.
Further complicating the issue, Section 122 of the Indian Evidence Act, 1872 prevents communication between spouses from being disclosed in court unless one spouse is being prosecuted for a crime against the other. This provision allows marital communications to be admissible only in criminal cases, such as cruelty or battery. Since the DV Act provides only civil remedies for sexual abuse within marriage, any relevant communication would be inadmissible in such proceedings. As a result, the inability to integrate the DV Act with this evidentiary provision further reinforces the legal gap, one that can only be addressed if marital rape is criminalized.
Though there is no provision to deliver justice to a wife subjected to marital rape, Section 377 of the IPC at least provided a route for punishment. Section 377 criminalized “carnal intercourse against the order of nature” without a marital exception, and offered a legal route for prosecution. While the Supreme Court’s 2018 ruling in Nevtaj Singh Johar decriminalized homosexuality, it only read down Section 377, keeping it applicable to non-consensual ‘unnatural’ offenses. Its complete absence in the BNS, however, has eliminated any provision to address such cases.
Domestic violence and marital laws have clearly proven to be insufficient
Over the years, women have invoked Section 377 alongside domestic violence laws to seek legal recourse for marital sexual violence. Though convictions were rare, it served as a starting point for prosecution. The absence of equivalent provision in the BNS has further weakened protections against marital rape.
When the husband cannot be punished, marital rape also remains unrecognized as a ground for divorce under Indian law. But the provisions for divorce outlined under Section 13 of the Hindu Marriage Act ,1955, Section 27 of the Special Marriage Act, 1954, and Section 10 of the Indian Divorce Act, 1869, enlist ‘cruelty’ as one of the valid reasons for seeking divorce. However, cruelty as defined under Section 498A of the IPC refers to conduct that drives a woman to suicide or causes grave injury or danger to her life, limb, or health. While it offers protection against perverse sexual conduct and unreasonable sexual demands, it does not explicitly recognize non-violent marital rape as cruelty. As a result, if a woman experiences marital rape without physical abuse or extreme harm, she is not legally considered a victim of cruelty and cannot file for divorce on these grounds.
A similar situation arises in cases of separation without divorce. Section 376B of the IPC punishes the husband if non consensual sex has been imposed on a wife during separation but only ‘under a decree of separation’. Dubey explained that this requirement of judicial separation excluded “a large section of women who live separately from their husbands without formally notifying the court”.
The Criminal Law (Amendment) Act, 2018, increased the minimum mandatory imprisonment for rape from seven to ten years. Section 64 of the BNS incorporates this. Developments, such as the raising of the marital rape exemption age from 15 to 18 years, resulted from judicial rulings and prior amendments, rather than any independent reform by the BNS. Thus, despite having the opportunity to introduce substantive legislative changes, the BNS mostly only codifies existing provisions without making any distinctive advancements in the legal framework governing rape laws.
Why the government is reluctant to criminalise marital rape
Despite multiple pleas and the Supreme Court’s recognition of the right to consent and bodily autonomy, the marital rape exception continues to violate millions of women’s rights under Articles 14 and 21. The government’s reluctance to criminalize marital rape stems from several reasons.
Firstly, marriage in India is perceived differently compared to countries like the U.S. and U.K.. Secondly, there is a concern over the potential misuse of the law by wives to settle personal disputes. Lastly, the government argues that even without criminalization, victims have recourse under civil laws like the DV Act, ensuring they are not entirely without legal protection.
These arguments are controvertible. Firstly, the notion that ‘marriage as a sacrament’ and thus different in India has been challenged not only by societal transformations, but through certain judicial interventions.
In 2021, the then-Chief Justice S.A. Bobde asked a rape accused whether he would marry the complainant, a minor at the time of the offence and just over eighteen during the hearing. In Abhishek v. State of Uttar Pradesh (2024), Justice Krishan Pahal of the Allahabad High Court granted bail to a man accused of raping a teenager on the pretext of marriage, directing him to deposit Rs 2 lakh as a fixed deposit for the child born out of rape. In July 2023, the Delhi High Court observed that there was “a disturbing pattern” where accused individuals marry rape victims to evade criminal charges, only to abandon them once the FIR was quashed or bail was secured. Despite this, courts continue to treat marriage as a shield against rape laws, often citing the principle that “bail is the rule and jail is the exception”.
Every law carries the potential for misuse, but can it be a reason to withhold its enactment?
It has been alleged that Sections 354 and 509 of the IPC, which address sexual harassment, are misused through false complaints. However,their crucial role in empowering women to assert their bodily rights outweighs such unverified contentions. Similarly, concerns over evidence collection in marital rape cases should not justify inaction. It is the duty of the legislature and judiciary to address these challenges. For instance, in Rahul Pundalik Birahade v. State of Maharashtra (2005), where the Supreme Court ruled that the absence of bruises does not negate the possibility of non-consensual intercourse, reaffirming that lack of resistance due to fear does not imply consent.
The claim that criminalizing marital rape would create a ‘practical difficulty’ for husbands in defending themselves is, at best, a half-truth. In reality, if marital rape is recognized, the burden of proof will overwhelmingly fall on the wife to establish non-consent, just as it does in other rape cases. The legal standard for proving rape remains stringent, making the fear of false accusations a weak defense against granting married women the same legal protections as others.
Lastly, as discussed earlier, the claim of protection under other laws falls apart in court due to legal complexities and procedural gaps. Even in cases of extreme abuse, the absence of a clear legal framework for marital rape often leaves the offender unpunished.
Activists continue to demand the criminalization of marital rape in India, advocating for legal reforms similar to those in the U.K. and Canada. In the UK, marital rape carries a lesser punishment than rape outside marriage due to the challenge of distinguishing consensual from non-consensual sex. Canada, on the other hand, considers the sexual history of the relationship in its judgments. However, in a country like India, where cases are overwhelming and the legal system is burdened, neither approach is entirely feasible.
The plight of millions of victims, as our data clearly indicates, needs to be urgently considered by the judiciary and the legislature. Undeniably, the marital rape exception, coupled with the troubling trend of “marry-the-rapist,” endangers the physical and psychological conditions of married women across the country. The government should no longer afford to sidestep this issue. It must take decisive action to protect women’s rights and bodily autonomy.