INTRODUCTION
Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023, which replaced Section 375 of the IPC, still carries forward the marital rape exception. The exception states that sexual intercourse by a man with his own wife who is not under the age of 18 does not constitute rape. (The earlier IPC had set this age at 15). This exception is a byproduct of colonial-era English common law under Sir Matthew Hale’s 1736 doctrine[1], which states that a wife gives irrevocable implied consent to sex upon marriage. The logic takes root in the idea that upon entering marriage, the woman permanently surrenders her right to refuse her husband. England itself abolished this doctrine, yet India carried forward into the BNS,2023.
Over 150 countries have criminalised marital rape. [2]Even within South Asia, Nepal and Bhutan have moved to criminalise it. India, the region’s largest democracy, has not.[3] This places India in a shrinking and increasingly indefensible group of nations that still treat marriage as a legal shield against rape prosecution.
Ironically, Indian law itself contradicts itself. The Protection of Women from Domestic Violence Act, 2005,[4] explicitly includes sexual abuse within marriage in its definition of domestic violence, meaning Parliament has already acknowledged that a husband can sexually violate his wife. This contradiction is not an oversight; it was a deliberate choice to acknowledge that a husband can sexually violate his wife, yet simultaneously refuse to extend criminal liability to that very act. The debate around criminalising marital rape in India is therefore not merely a legislative one; it raises fundamental constitutional questions about equality, dignity, and bodily autonomy that can no longer be ignored.
THE CASE FOR CRIMINALISATION
- Constitutional Violations – Articles 14 and 21: The marital rape exception goes against fundamental rights protected by the Indian Constitution. Article 14[5] guarantees equality before the law for everyone, but this rule unfairly divides rape survivors into two groups: married and unmarried. While unmarried women are protected under rape laws, married women are denied the same protection, without any valid justification. Article 21[6] safeguards not just life, but also dignity and control over one’s own body. In the 2017 Supreme Court case of Justice K.S. Puttaswamy v. Union of India,[7] the court made it clear that privacy and bodily autonomy are essential rights for every person. A woman’s right to refuse sexual intercourse does not disappear upon marriage. Marriage cannot be used as an excuse to suspend these core rights.
- Justice Verma Committee Recommendations (2013): After the Nirbhaya case, the Justice Verma Committee[8] explicitly recommended removing the marital rape exception, stating that marriage cannot act as a licence for sexual assault. Despite this, Parliament chose not to implement the recommendation, both in 2013 and again while drafting the BNS in 2023. This reflects a deliberate inaction rather than an oversight.
- Civil Remedy Is Not a Substitute for Criminal Accountability: The government’s position that PWDVA[9] provides a sufficient remedy fundamentally misses the key difference between civil and criminal law[10]. Civil law resolves disputes between parties. Criminal law punishes acts that the State recognises as wrongs against society. Rape is not a private dispute between a husband and wife; it is a crime against the person, and the State has an obligation to treat it as one. A protection order under PWDVA does not punish the perpetrator; it does not result in conviction, imprisonment, or a criminal record. Criminal law deters through the fear of prosecution and imprisonment; civil law carries no such weight. The absence of criminal liability effectively signals that the worst consequence a husband faces is a protection order. Beyond punishment and deterrence, criminal law serves another purpose: it publicly acknowledges that an act is wrong. A conviction is the State’s formal declaration that a crime was committed and the survivor was wronged. A civil remedy offers no such recognition. It treats the matter as a private dispute to be managed, not a violation to be punished. There is no principled reason why a marital rape should be treated as a civil instead of a criminal case.
THE CASE AGAINST CRIMINALISATION
The Union Government has opposed criminalisation on practical grounds rather than defending the original colonial logic. One of the main concerns is misuse[11], that such a law could be used to file false cases during matrimonial disputes. Since marital rape typically occurs in private, proving it becomes difficult, and courts may have to rely heavily on the statements of the parties involved.
Another argument is that criminalising marital rape falls within the domain of the legislature, not the judiciary. It is argued that decisions affecting the institution of marriage and social norms should be made by Parliament. Opponents also fear that introducing criminal liability into marital relationships could disrupt the institution of marriage, which holds deep social and cultural importance in India. Some also argue that criminalisation could lead to an increase in litigation and strain the already burdened judicial system. However, administrative inconvenience cannot be a valid ground to deny justice in cases involving fundamental rights.
ANALYSIS
These arguments, however, do not stand strong on closer examination. The government has moved away from the colonial justification of implied consent but has not provided any solid alternative reason for retaining the exception. Practical concerns alone cannot justify a law that violates fundamental rights. The misuse argument is not new. Similar concerns were raised when laws like the Dowry Prohibition Act and domestic violence laws were introduced. Yet, misuse has never been accepted as a valid reason to deny legal protection altogether. Every law carries the possibility of misuse, but that calls for careful enforcement, not complete denial of rights.
Lastly, the idea that civil remedies are sufficient has already been addressed. Civil and criminal law serve different purposes, and one cannot replace the other. Recognising sexual abuse under civil law but refusing to criminalise it creates a clear legal contradiction. It sends a mixed message, acknowledging harm but refusing to treat it with the seriousness it deserves.
CONCLUSION
The marital rape exception violates Articles 14 and 21. But the real question is: who should remove it, the Supreme Court or Parliament? The government argues that only Parliament can decide. However, fundamental rights exist precisely to protect individuals even when the majority disagrees. Married women cannot be left waiting for legislative majorities to change.
Marital rape is indeed difficult to prove. It happens in private, often without witnesses. But the law does not respond to difficult crimes by declaring them legal. Instead, it improves evidence rules, trains judges, and strengthens procedures. To keep the exception simply because proof is hard is to value convenience over constitutional rights.
Criminalising marital rape will not end all violence in marriage overnight. No single law can do that. But the law has an educational role. It signals what society considers acceptable. Retaining the exception sends a message that a wife’s body is not fully her own. Removing it ends the State’s endorsement of that idea. The Supreme Court must act because Parliament has repeatedly refused to. Marriage is not a waiver of constitutional rights. The Constitution does not stop at the doorstep of the marital home.
Author’s Name: Aastha Patel (O.P. Jindal Global University, Sonipat)
References:
[1] R v R [1991] UKHL 12
[2] Equality Now and Dignity Alliance International, Sexual Violence in South Asia: Legal and Other Barriers to Justice for Survivors (Equality Now 2021).
[3] ibid.
[4] Protection of Women from Domestic Violence Act 2005, s 3.
[5] Constitution of India 1950, arts 14 and 21.
[6] Ibid.
[7] Justice K.S. Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1
[8] Justice JS Verma, Justice Leila Seth and Gopal Subramanium, Report of the Committee on Amendments to Criminal Law (Ministry of Home Affairs, January 2013)
[9] Protection of Women from Domestic Violence Act 2005, s 3(a).
[10] ‘Rape Laws in India: A Detailed Analysis under Section 375 IPC and Section 63 of the Bharatiya Nyaya Sanhita, 2023’ (Legal Service India)
[11] ‘Centre Says Supreme Court Can’t Criminalise Marital Rape, Married Women Already Protected’ (Bar and Bench, 3 October 2024)
