This Article is written by Simran Shirvoikar from KLE society law college, Bangalore pursuing my final year in B.A. LL.B
Keywords
● Marital Rape
● Gender Justice
● Consent in Marriage/ Marital Consent
● Social Awareness
● Criminalisation
Abstract
Even though we are living in 2025, many people still hold on to old and outdated beliefs. One clear example is how society views marital rape. Many still ignore or reject the idea that forced sex within marriage is wrong, even though awareness about women’s rights and equality has grown. In India, marital rape is still not treated as a crime because of a law in Section 375 of the Indian Penal Code, which says that if a husband forces his wife (who is over 18) to have sex, it is not considered rape.
This thinking comes from the old belief that once a woman gets married, her husband automatically has full rights over her body. Because of this mindset, many people still believe that a husband can force his wife to have sex at any time, and that he cannot be punished for it. This shows a lack of legal protection and social awareness, where the idea of consent within marriage is ignored.
But in a modern country that follows a Constitution, these ideas go against the values of equality, dignity, and personal freedom. The Indian Constitution gives every citizen, including married women, the right to live with dignity (Article 21), equality before law (Article 14), and freedom from discrimination (Article 15). By not punishing marital rape, the law violates these rights and keeps women trapped in silence and suffering.
Criminalising marital rape is not about interfering in marriage. It is about understanding that marriage should not be a license to harm or abuse someone. It sends a strong message that everyone has the right to say no, even in marriage. More than 40 countries around the world have already made marital rape a crime, recognising that rape is always rape, no matter the relationship.
So, making marital rape is a crime in India is not just a change in law but rather it is an important step toward gender justice, social progress, and protecting basic human rights. India must leave behind outdated and unfair beliefs, and ensure that no woman is denied justice just because her rapist is her husband.
Introduction
In India, the concept of marital rape refers to a situation where a husband forces his wife to have sexual intercourse without her consent. While rape is a serious criminal offence under Indian law, an exception in Section 375 of the Indian Penal Code (IPC) currently excludes forced sex by a husband from being considered rape, unless the wife is under 18 years of age. This exception is rooted in the outdated belief that marriage gives a man automatic and permanent consent to sex from his wife, regardless of her will or condition.
This legal gap raises serious concerns about gender justice, bodily autonomy, and equality before the law. It also contradicts the fundamental rights enshrined in the Indian Constitution, particularly Article 14 (equality before law), Article 15 (prohibition of discrimination on grounds of sex), and Article 21 (right to life and personal liberty). Many women’s rights activists, legal scholars, and international human rights bodies have long demanded that marital rape be criminalised in India, arguing that marriage should not be used as a shield to protect sexual violence.
Criminalising marital rape is not just about legal reform but it is also about acknowledging a woman’s right to say no within marriage, and about protecting her dignity, freedom, and physical integrity. More than 40 countries across the world have already recognised marital rape as a crime, and it is high time India takes a step forward toward ensuring true gender justice and ending all forms of violence against women, even those hidden behind the institution of marriage.
Marital rape
Marital rape means forcing a husband or wife to have sexual intercourse without their consent. It happens within a marriage, when one partner, usually the husband, forces the other to have sex against their will, using pressure, threats, or physical violence.
Even though the couple is married, consent is still important. If one partner says “no,” forcing sex is considered rape, just like in any other situation. However, in some countries like India, the law does not treat it as a criminal offence if the wife is above a certain age, which has led to debates on changing the law to protect women’s rights.In simple words, marital rape is rape that happens between married partners when one does not agree to the sexual act.
Legal Provision
According to Section 375 of the IPC, if a man has sexual intercourse with his wife who is 18 years or older, it is not considered rape, even if the wife does not give her consent. This means marital rape is not a crime under the IPC.
Protection of Women from Domestic Violence Act, 2005:
This law recognises sexual abuse, including marital rape, as a type of domestic violence. While it does not treat it as a criminal offence, it allows women to seek protection, legal support, and other remedies like residence rights and protection orders through the court.
How the Issue of Marital Rape Gained Legal and Social Attention in India
The concept of marital rape entered public discourse in India due to growing awareness of women’s rights, constitutional equality, and bodily autonomy. Initially, the Indian Penal Code, drafted during British colonial rule in 1860, included an explicit exception in the definition of rape, stating that forced sex by a husband with his wife would not amount to rape if the wife was above a certain age. This exception was based on the outdated belief that marriage implied permanent consent, and that a wife had no legal right to refuse sexual relations with her husband.
Over the years, women’s rights organisations, legal scholars, and human rights bodies began to challenge this view, arguing that such a law denies women their basic right to consent and bodily integrity. The conversation gained momentum especially after the 2012 Nirbhaya case, which triggered widespread public protests and led to the formation of the Justice J.S. Verma Committee. The Committee explicitly recommended that the marital rape exception be removed from the law, stating that a woman does not lose her constitutional rights after marriage.
Subsequently, various petitions were filed in courts, particularly in the Delhi High Court, challenging the constitutionality of the marital rape exception. Media coverage, feminist movements, and international pressure further contributed to the visibility of the issue. These efforts shifted the debate from being purely legal to becoming a broader social, ethical, and constitutional issue, demanding that consent must be recognised as central to all sexual relationships including those within marriage.
Delhi High Court:
The Delhi High Court has played a significant role in the debate over the marital rape exception. The matter first came up in 2015 when several individuals and civil society organisations filed petitions challenging the constitutional validity of the marital rape exception under Section 375 of the Indian Penal Code. The petitioners argued that this exception violated a woman’s right to consent, equality, and dignity under the Constitution. In January 2022, a two-judge bench of the High Court began hearing the case. However, in May 2022, the bench delivered a split verdict. Justice Rajiv Shakdher held the exception to be unconstitutional, stating that it infringes on a woman’s fundamental right to bodily autonomy and personal liberty. On the other hand, Justice C. Hari Shankar took a different view, stating that marriage “necessarily” implies consent and that the exception was not arbitrary. Due to this split, the case was referred to the Supreme Court for further consideration.
Supreme Court of India
In September 2022, the Supreme Court of India made a significant observation regarding marital rape, though in a different legal context. While interpreting the Medical Termination of Pregnancy (MTP) Act, the Court ruled that for the purpose of the Act, the definition of rape must include instances of non-consensual sex within marriage. This ruling granted unmarried women equal access to abortion services and recognised that lack of consent, even within marriage, constitutes rape. Although this judgment did not directly strike down the marital rape exception in the IPC, it reflected a progressive judicial approach towards recognising a woman’s autonomy and right to consent, regardless of her marital status.
Law Commission of India
The Law Commission of India, in its 172nd Report published in the year 2000, considered the issue of criminalising marital rape as part of a broader reform of laws on sexual violence. However, the Commission ultimately rejected the proposal to remove the marital rape exception from the Indian Penal Code. It reasoned that, given India’s social structure and the deeply embedded cultural and religious values surrounding marriage, such a step might be impractical. The Commission was concerned that criminalising marital rape could lead to misuse and disrupt the sanctity of the marital relationship, reflecting the conservative mindset prevalent at the time.
Justice J.S. Verma Committee (2012)
The Justice J.S. Verma Committee was constituted in 2012 in response to the Nirbhaya gang rape case, with the mandate to suggest reforms to India’s criminal law to better address sexual violence. The Committee strongly recommended that the exception for marital rape be removed from Section 375 of the IPC. It emphasised that marriage should not be a valid defence against rape charges and that a woman’s right to her bodily integrity and sexual autonomy must be protected, even within marriage. Despite the Committee’s comprehensive report and its moral and legal reasoning, the recommendation to criminalise marital rape was not accepted by the Government when it enacted the Criminal Law (Amendment) Act, 2013. This omission was widely criticised by rights activists and legal experts.
Parliament’s Response
The issue of marital rape has also been discussed in Parliament, but it has received limited support from lawmakers. In a 2015 parliamentary session, questions were raised about whether the Government intended to amend the law to recognise marital rape as a criminal offence. However, the response from the Government was dismissive. It argued that the concept of marital rape could not be applied in the Indian context because marriage is considered a sacred institution in Indian society. This statement reflected the socio-cultural resistance within the legislature and the belief that acknowledging marital rape would undermine traditional family structures.
Government’s Stand in Courts
The Central Government’s stance on marital rape has been inconsistent. Initially, it defended the marital rape exception in court, arguing that criminalising it could lead to the misuse of the law by disgruntled spouses and could destabilise the institution of marriage. It also raised concerns about difficulties in proving marital rape and the possibility of false allegations. However, the Government later modified its position and informed the courts that it was reviewing the law and that wider consultations with stakeholders were needed. Meanwhile, the Delhi Government supported the continuation of the exception, stating that the law should protect the institution of marriage and prevent its misuse. These arguments suggest that the Government has been reluctant to take a firm stand in favour of criminalising marital rape, prioritising social and institutional concerns over individual rights.
Comparison Analysis
A comparison of marital rape laws in different countries shows a clear difference between modern legal systems and those still shaped by old-fashioned and male-dominated beliefs. Many countries now understand that being married doesn’t take away a person’s right to say no, so they have made marital rape a crime. However, some countries, like India, still follow old laws that allow forced sex in marriage, showing the need for change.
India
In India, marital rape is not recognised as a criminal offence. The law explicitly states that forced sexual intercourse by a husband with his wife, if she is above 18 years of age, does not constitute rape. This exemption is based on the traditional notion that marriage implies permanent consent. Despite growing awareness of individual rights and bodily autonomy, the legal system has so far failed to criminalise marital rape. The matter remains under judicial scrutiny, and no legislative action has yet been taken to amend this exception in the law.
United Kingdom
In the United Kingdom, marital rape is criminalised. The legal system acknowledges that marriage does not grant unconditional rights over a spouse’s body. Consent is considered essential in every sexual act, regardless of marital status. The law upholds that a woman retains her right to say no at all times, and the sanctity of marriage does not override individual bodily autonomy.
United States
In the United States, all 50 states have criminalised marital rape. Although the degree of punishment and the definitions may vary between states, the overall legal principle is that marriage cannot be used as a defence against rape charges. Consent is treated as a fundamental element of any sexual relationship, and the law recognises that even within marriage, sexual violence can occur.
Germany
Germany recognises marital rape as a punishable offence under its criminal law. The legal reforms emphasise that sexual self-determination is a basic human right that must be respected in all relationships, including marriage. The country’s legal framework treats forced sexual acts within marriage the same as it would outside of it, reinforcing the principle of gender equality and personal dignity.
France:
In France, marital rape is also treated as a criminal offence. The law clearly establishes that marriage does not negate the requirement of consent. Sexual violence within a marital relationship is punishable just like any other form of rape. The French legal system protects the rights of individuals to control their own bodies, regardless of their marital status.
Australia
Australia criminalises marital rape across all its states and territories. Legal reforms were introduced gradually, and today, forced sex within marriage is considered rape under Australian law. The country recognises that consent must be freely given and can be withdrawn at any time, even between spouses. The law prioritises the autonomy and safety of individuals in all relationships.
Conclusion
Marital rape remains one of the most ignored forms of violence against women in India, despite being a clear violation of their dignity, bodily autonomy, and constitutional rights. The idea that marriage gives unconditional sexual access to a woman’s body reflects outdated patriarchal thinking and undermines the principle of consent. Criminalising marital rape is not about interfering in personal relationships but about recognising every individual’s right to say no, even within marriage. It is a necessary step toward ensuring gender justice and equal protection under the law. To bring this change, India must amend Section 375 of the IPC to remove the marital rape exception, promote public awareness on the importance of consent, improve legal and psychological support systems for victims, and implement educational programs that encourage respect and equality in relationships. As we move forward, we must remember that marriage should never be a license to violate someone’s will ‘rape is rape, regardless of the relationship’.
