1.Introduction
Marital rape or Spousal rape refers to involving in sexual intercourse with one’s partner or spouse without obtaining any consent of that spouse. Marital rape is deemed to be a form of domestic and sexual abuse as the important element Free Consent is missing.[1] Although, traditionally involving in sexual intercourse with spouse within marriage was considered as a right of the spouses, but doing it without the Free Consent of any of the spouse is classified as Rape by many societies across the world, relinquished by international conventions and increasingly criminalized.[2]
India in amongst the thirty-six countries that still haven’t criminalized rape within marriage. The Indian legal system excludes forced sex within marriage from the crime of rape, whereas the same act if done with a stranger becomes a severe crime, and no doubt why it is a current legal issue in India.[3]
India is among the few countries that still provides an exception for rape. The exception of section 63 of BNS says that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. [4]
2.Evolution of the Debate
All Indian laws enacted at 19th century, were deeply influenced by English laws and Victorian norms. The marital exception to the IPC’s provision of rape was drafted based on the Victorian patriarchal norms that did not recognize men and women as equals, didn’t allow married women to own property, and merged the identities of husband and wife under the “Doctrine of Coverture”. [5]
But in today’s era Indian law grants husbands and wives separate and independent legal identities, and much jurisprudence is solicitously concerned with women’s protection. This concern is evident from the enforcement of “The Protection of Women from Domestic Violence Act, 2005” and the “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013”. [6]
Activists and legal experts argue that the exception violates constitutional and fundamental rights, such as equality and equal protection before law (Article 14) and right to life and personal liberty (Article 21). While the Central Government has expressed that criminalizing marital rape could weaken the "sacred institution of marriage".[7] These different statements are approaching a legal and constitutional debate in today’s legal system.
3.The Legal Perspective
To understand the debate on the criminalisation of marital rape, it is important to examine India's legal position on consent and bodily autonomy. Section 63 of the BNS 2023, defines rape and recognises that consent must be a free and voluntary agreement. It also makes it clear that the absence of physical resistance does not imply consent. However, Exception 2 to Section 63 excludes non-consensual sexual intercourse by a husband with his wife (provided she is not under 15 years of age) from the definition of rape.[8] This exception is based on the assumption that marriage implies continuing consent to sexual relations, which remains at the centre of the ongoing legal and constitutional debate.[9]
Critics argue that the marital rape exception is inconsistent with Articles 14 and 21 of the Constitution. Under Article 14, it treats married and unmarried women differently by denying married women the same legal protection against non-consensual sexual acts solely because of their marital status.[10] It also raises concerns under Article 21, which guarantees the right to life, personal liberty, dignity, privacy, and bodily autonomy. By excluding forced sexual intercourse within marriage from the definition of rape, the exception is argued to undermine these constitutional rights.[11]
3.1 Justice Verma Committee and Judicial Developments
The Justice J.S. Verma Committee (2013) recommended removing the marital rape exception, observing that it was inconsistent with the principles of equality and women's rights. In 2017, a woman filed a suit against her husband, Hrishikesh Sahoo, accusing him of multiple offences under BNS, including marital rape,[12] making threats of causing harm, domestic violence, and abusing their daughter and was charged with POCSO act. In 2022, the Karnataka High Court relied on this recommendation while refusing to quash rape charges against the husband, stating that no legal exception should become a licence for the commission of a crime. In the same year, the Delhi High Court delivered a split verdict on the constitutional validity of the marital rape exception,[13] leaving the issue unresolved. The matter is presently pending before the Supreme Court of India. Meanwhile, Section 63 of the BNS 2023, which defines the offence of rape, continues to contain the marital rape exception, similar to the earlier provision under Section 375 of the IPC.[14]
4.Examining the Debate
4.1. Consent Should Continue Within Marriage
Marriage should not be treated as permanent or unconditional consent to sexual intercourse. The idea that a spouse automatically loses the right to refuse sex after marriage conflicts with the principle of bodily autonomy.[15] Every individual has the right to decide when and under what circumstances to engage in sexual relations, regardless of their marital status. Therefore, recognising consent within marriage is essential to protecting a person's dignity and personal liberty.[16]
4.2 Criminalisation Alone May Not Be Enough
Criminalising marital rape alone may not fully protect married women's autonomy. Many scholars argued that unless family laws also move away from treating sexual relations as a marital duty,[17] women may continue to face pressure to justify their refusal of sex. Meaningful reform would therefore require changes not only in criminal law but also in the broader legal understanding of consent within marriage.
4.3 The Conflict Between Family Law and Criminal Law
A significant challenge in the marital rape debate is the inconsistency between family law and criminal law. Indian courts have, in several matrimonial disputes, treated the unreasonable refusal of sexual relations as a form of mental cruelty. At the same time, advocates of criminalisation argue that consent should remain central to every sexual relationship, including marriage.[18] This creates a legal contradiction, as one area of law views sexual relations as a marital obligation while another seeks to protect an individual's right to refuse non-consensual intercourse. [19]
4.4 Concerns about preserving the institution of marriage
Those who oppose the criminalisation of marital rape argue that introducing rape charges within marriage could affect the institution of marriage and lead to increased matrimonial disputes.[20] Some judicial opinions have expressed concern that criminal law should not interfere excessively in the marital relationship and that existing legal remedies are available to address abuse within marriage.[21]
5.The Way Forward
The existing legal framework indicates the need for a more comprehensive approach to addressing marital rape. Legal reforms may help ensure that consent and bodily autonomy are protected within marriage while maintaining fairness in the justice system. Such reforms could include recognising marital rape as a criminal offence, bringing matrimonial laws in line with criminal law, strengthening legal safeguards for victims, and ensuring that adequate measures exist to prevent the misuse of the law. A balanced legal framework would better reflect the constitutional values of equality, dignity, and justice.
Considering the ongoing legal and constitutional debate, I believe that the exception which facilitates marital rape should be reform and must treat marital rape as a heinous crime to protect the right to life and dignity of women.
Reference
[1] that, G. S. (n.d.). Manupatra Academy. Manupatracademy. https://www.manupatracademy.com/
[2] Manupatra. (n.d.). Articles – Manupatra. Articles. https://articles.manupatra.com/
[3] Manupatra. (n.d.). Articles – Manupatra. Articles. https://articles.manupatra.com/
[4] that, G. S. (n.d.). Manupatra Academy. Manupatracademy. https://www.manupatracademy.com/
[5] Prajapati, P. (2022). Marital Rape: A Non-criminalized Crime in India Against Women. Gender Equity: Challenges and Opportunities, 383–390. https://doi.org/10.1007/978-981-19-0460-8_39
[6] Prajapati, P. (2022). Marital Rape: A Non-criminalized Crime in India Against Women. Gender Equity: Challenges and Opportunities, 383–390. https://doi.org/10.1007/978-981-19-0460-8_39
[7] Unknown title (n.d.). Unknown title. Legislative. https://www.legislative.gov.in/constitution-of-india
[8] Unknown title (n.d.). Unknown title. Indiacode. https://www.indiacode.nic.in/bitstream/123456789/19150/1/constitution_of_india.pdf
[9] Unknown title (n.d.). Unknown title. Legislative. https://www.legislative.gov.in/constitution-of-india
[10] Unknown title (n.d.). Unknown title. Indiacode. https://www.indiacode.nic.in/bitstream/123456789/19150/1/constitution_of_india.pdf
[11] Prajapati, P. (2022). Marital Rape: A Non-criminalized Crime in India Against Women. Gender Equity: Challenges and Opportunities, 383–390. https://doi.org/10.1007/978-981-19-0460-8_39
[12] Supreme Court Observer. “Cases - Supreme Court Observer.” Supreme Court Observer, 30 Aug. 2021, www.scobserver.in/cases.
[13] Supreme Court Observer. “Analysis Archives - Supreme Court Observer.” Supreme Court Observer, www.scobserver.in/category/analysis.
[14] ---. “Supreme Court Observer - a Living Archive of the Supreme Court of India.” Supreme Court Observer, 6 July 2026, www.scobserver.in.
[15] “Why Making Marital Rape a Crime Is Unlikely to Provide Married Women the Legal Backing to Say No to Forced Sex.” Home, article-14.com/post/why-making-marital-rape-a-crime-is-unlikely-to-provide-married-women-the-legal-backing-to-say-no-to-forced-sex-6494ffaa66bab.
[16] “Why Making Marital Rape a Crime Is Unlikely to Provide Married Women the Legal Backing to Say No to Forced Sex.” Home, article-14.com/post/why-making-marital-rape-a-crime-is-unlikely-to-provide-married-women-the-legal-backing-to-say-no-to-forced-sex-6494ffaa66bab.
[17] Law, Tygar. “Marital Rape Debate in India: Legal Status and Court Observations.” TYGAR LAW CORPORATE, 17 Apr. 2026, tygarlaw.com/blogs/news/marital-rape-debate-in-india-legal-status-and-court-observations?srsltid=AfmBOoqY5J-hmJ7IZ3BrDwE7oecmoceI9mjNDH63v7WQyis6rb1c-jrM.
[18] Law, Tygar. “Marital Rape Debate in India: Legal Status and Court Observations.” TYGAR LAW CORPORATE, 17 Apr. 2026, tygarlaw.com/blogs/news/marital-rape-debate-in-india-legal-status-and-court-observations?srsltid=AfmBOoqY5J-hmJ7IZ3BrDwE7oecmoceI9mjNDH63v7WQyis6rb1c-jrM.
[19] “Marital Rape in India.” Drishti IAS, www.drishtiias.com/daily-updates/daily-news-analysis/marital-rape-in-india-2.
[20] Meshesha, Hiwot Demissew. “Analysis of Marital Rape in Ethiopia in the Context of International Human Rights.” Unisa Institutional Repository (University of South Africa), 1 Oct. 2014, hdl.handle.net/10500/19684.
[21] “Marital Rape in India.” Drishti IAS, www.drishtiias.com/daily-updates/daily-news-analysis/marital-rape-in-india-2.