Marital Rape in India: Legal Vacuum, Social Stigma, and
the Struggle for Reform
Abstract
Despite being a serious violation of bodily autonomy and human dignity, marital rape is not
recognized as a criminal offense under Indian law. This paper critically examines the historical,
legal, and sociocultural dimensions of marital rape in India. It compares global best practices,
analyzes judicial trends, and argues for the urgent need to criminalize non-consensual sex within
marriage to uphold constitutional values and international human rights obligations.
1. Introduction
The institution of marriage in India has traditionally been viewed as sacrosanct and inviolable,
often placing the sanctity of marriage above individual rights. Within this framework, the
concept of marital rape—defined as non-consensual sexual intercourse by a husband with his
wife—is either denied or ignored. The Indian Penal Code (IPC), under Section 375, specifically
exempts a husband from being prosecuted for rape if the wife is above 18 years of age. This legal
provision effectively denies married women protection against sexual violence by their spouses.
2. Legal Framework in India
2.1 Statutory Law
Section 375 of the Indian Penal Code defines rape but includes an exception:
“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is
not rape.”
(Note: This age was revised to 18 in light of Independent Thought v. Union of India, (2017) 10
SCC 800.)
This exception, Exception 2 to Section 375, implies that consent is presumed within marriage,
stripping married women of agency over their own bodies.
2.2 Judicial Approach
While the Indian judiciary has recognized the importance of individual autonomy and bodily
integrity in cases like Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 (right to
privacy), it has been reluctant to overturn the marital rape exception. However, courts have
increasingly acknowledged that sexual violence within marriage constitutes cruelty under civil
law (e.g., Section 498A IPC, Protection of Women from Domestic Violence Act, 2005), though
not as rape under criminal law.
3. Sociocultural Context
Marital rape is underreported in India due to several factors:
Patriarchal norms: The belief that marriage entitles a man to unconditional sexual
access to his wife.
Fear of social stigma: Women fear ostracization, familial breakdown, or being blamed.
Economic dependence: Many women are financially dependent on their husbands and
avoid legal confrontation.
A 2014 report by the National Family Health Survey (NFHS-4) indicated that over 83% of
married women who experienced sexual violence did not seek help or tell anyone about it.
4. Comparative Jurisprudence
4.1 United Kingdom
The common law principle established in R v. Clarence (1888) that a husband could not be guilty
of raping his wife was overturned in R v. R [1991] UKHL 12, where the House of Lords ruled
that a husband could be charged with raping his wife. The decision was grounded in evolving
societal standards and the understanding that marriage does not imply irrevocable consent.
4.2 United States
All 50 states in the U.S. have criminalized marital rape, albeit with variations in severity and
enforcement. Landmark cases such as People v. Liberta, 64 N.Y.2d 152 (1984), have affirmed
that spousal exemption laws are unconstitutional.
4.3 South Africa
South Africa recognizes marital rape as a criminal offense under the Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2007, based on a constitutional guarantee of
equality and dignity.
5. Constitutional and Human Rights Concerns
The marital rape exception in Indian law contradicts multiple constitutional guarantees:
Article 14 (Right to Equality)
Article 15(1) (Prohibition of discrimination)
Article 21 (Right to life and personal liberty, including privacy and dignity)
India is also a signatory to various international treaties like CEDAW (Convention on the
Elimination of All Forms of Discrimination Against Women), which mandate protection against
gender-based violence, including within marriage.
6. Law Commission and Legislative Inertia
6.1 172nd Law Commission Report (2000)
The Law Commission recommended criminalizing marital rape by deleting the exception under
Section 375 IPC. However, the government did not act upon it.
6.2 Verma Committee Report (2013)
In the aftermath of the Nirbhaya case, the Justice Verma Committee recommended the
criminalization of marital rape. The Committee emphasized that the right to bodily integrity
should not cease to exist within marriage.
Despite these recommendations, the Criminal Law (Amendment) Act, 2013 retained the
exception for marital rape.
7. Recent Developments and Debates
7.1 Delhi High Court Split Verdict (2022)
In RIT Foundation & Others v. Union of India, a bench of the Delhi High Court delivered a split
verdict:
Justice Shakdher held the marital rape exception unconstitutional.
Justice Hari Shankar upheld the validity of the exception.
The case is now pending before the Supreme Court of India.
7.2 Government Stance
The Union Government has resisted criminalizing marital rape, citing:
Potential misuse of the law
Impact on the institution of marriage
Need for broader consultation
This stance has been widely criticized by activists and scholars as regressive.
8. Arguments for Criminalization
Consent must be continuous and revocable, even within marriage.
Marriage is not a license to rape: Upholding marital rape exception legitimizes
violence.
Global precedent and human rights standards call for its abolition.
Psychological and physical trauma inflicted on victims is severe and long-lasting.
9. Recommendations
Amend Section 375 IPC to delete Exception 2 and clearly include non-consensual sex
within marriage.
Sensitize law enforcement and judiciary to handle such cases with empathy and
professionalism.
Launch awareness campaigns to challenge patriarchal notions around conjugal rights.
Introduce safeguards against false complaints, similar to other gender-based violence
laws.
10. Conclusion
Marital rape represents a grave violation of human rights, gender justice, and constitutional
morality. The continued existence of the marital rape exception in Indian law is a legal anomaly
that reflects entrenched patriarchy. Criminalizing marital rape is not merely a legal necessity but
a moral imperative in a society that aspires to uphold the dignity and equality of all its citizens.
