Introduction
Marital rape—defined as non-consensual sexual intercourse by a husband with his wife—remains one of the most debated and sensitive legal issues in India. While many countries across the world have criminalised it, India continues to retain an exception under Section 375 of the Indian Penal Code (IPC), which effectively shields husbands from prosecution if the sexual act is committed within marriage (except when the wife is below 18 years of age).
In recent years, the Supreme Court of India has been at the forefront of deliberations on this issue. Its observations, coupled with changing judicial trends and increasing public discourse, suggest that India might be inching towards reform. However, the path remains complex, involving constitutional principles, social realities, and questions of individual rights versus marital sanctity.
The Current Legal Framework
•Section 63 of BNS defines rape but explicitly exempts sexual intercourse by a man with his wife, provided she is not under 18 years of age.
. Section 67 of BNS criminalises sexual intercourse by a husband during judicial separation, but it carries a lighter punishment than regular rape provision
This exception rests on a colonial-era belief that marriage implies permanent and irrevocable consent for sexual relations. Critics argue that this legal position undermines women’s autonomy, dignity, and bodily integrity, violating constitutional protections under Articles 14 (equality), 19 (freedom), and 21 (right to life and personal liberty).
Judicial Pronouncements and Developments
1. Independent Thought v. Union of India (2017)
The Supreme Court read down the marital rape exception in cases where the wife is between 15–18 years of age, holding it unconstitutional as it violates the child’s fundamental rights. Although this judgment did not address adult women, it marked a significant step in questioning the blanket immunity granted to husbands.
2. Joseph Shine v. Union of India (2018)
In striking down Section 497 IPC (Adultery law), the Court emphasised equality and autonomy within marriage. While not directly on marital rape, the reasoning hinted that marriage cannot be used as a ground to curtail women’s constitutional rights.
3. Supreme Court Hearing on Marital Rape (2022)
Petitions challenging the marital rape exception are currently before the Court. During hearings, judges observed that marriage does not mean unconditional consent and stressed the need to balance tradition with constitutional morality. The case reflects judicial willingness to reconsider outdated norms.
4. Delhi High Court Split Verdict (2022)
A landmark case saw a split verdict—one judge striking down the marital rape exception as unconstitutional, while the other upheld it, citing potential misuse and societal complexities. The matter now rests with the Supreme Court for final adjudication.
Arguments for Criminalising Marital Rape
1. Violation of Fundamental Rights
Marital rape denies women equality, dignity, and bodily autonomy guaranteed under Articles 14 and 21. Consent cannot be assumed permanently by virtue of marriage.
2. International Obligations
India is a signatory to treaties like CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), which obligates states to eliminate discrimination in all forms, including within marriage.
3. Changing Notion of Marriage
Marriage today is seen as a partnership of equals, not an institution where women surrender their rights. The law must evolve in line with contemporary values.
4. Public Health and Safety
Recognising marital rape as a crime would help women seek legal recourse, medical care, and psychological support, reducing domestic violence.
Arguments Against Criminalisation
1. Fear of Misuse
Critics argue that criminalising marital rape could lead to false complaints, disrupting families and burdening the legal system.
2. Existing Remedies under Other Laws
Some suggest that Protection of Women from Domestic Violence Act, 2005 and Section 498A IPC (cruelty by husband) already provide remedies, making a separate offence unnecessary.
3. Critics argue that in the Indian context
marriage is deeply rooted in cultural and social values, and introducing marital rape as a criminal offence might disrupt the traditional family structure, potentially leading to a rise in marital conflicts and divorces.”
4. Difficulty of Proof
Questions of evidence and privacy in the marital relationship make proving such cases particularly challenging.
Supreme Court’s Approach: Balancing Rights and Realities
The Supreme Court has repeatedly highlighted that constitutional rights cannot be suspended within marriage. In its deliberations:
• The Court recognises the need to protect women’s dignity.
• At the same time, it acknowledges concerns of misuse and evidentiary difficulties.
• It has suggested a cautious, balanced approach, perhaps involving graded punishments, counselling mechanisms, and time-bound investigations.
This reflects the judiciary’s effort to balance individual liberties of women with societal interests and family stability.
Is India Moving Towards Reform?
The signs suggest yes:
• Judicial activism: Courts are increasingly questioning patriarchal assumptions in law.
• Public discourse: Media, civil society, and women’s rights groups are vocally advocating change.
• Legislative attention: While Parliament has yet to act decisively, Law Commission reports and parliamentary debates keep the issue alive.
• Comparative perspective: Over 100 countries worldwide have criminalised marital rape, creating moral and legal pressure on India to follow suit.
Yet, reforms in India often face resistance due to the country’s diverse cultural fabric. Change may come gradually, with incremental judicial and legislative measures.
Possible Roadmap for Reform
1. Legislative Amendment
Parliament should amend Section 375 IPC to remove the marital rape exception, explicitly recognising non-consensual sex within marriage as rape.
2. Safeguards Against Misuse
Introduce provisions for preliminary inquiry, mandatory counselling, or mediation (except in serious cases) to balance concerns of false allegations.
3. Awareness Campaigns
Legal reform must be accompanied by awareness campaigns on consent, gender equality, and healthy marital relations.
4. Support Systems for Victims
Establish crisis centres, counselling, and financial assistance programs for survivors to access justice without fear of stigma or dependence.
5. Judicial Training
Sensitisation of judges, police, and prosecutors on marital rape cases is crucial to avoid victim-blaming attitudes.
Conclusion
The Supreme Court’s evolving stance indicates that the judiciary is willing to re-examine outdated notions of implied marital consent .
whether India is moving toward reform depend largely on the synergy between courts, Parliament, and society. criminalising marital rape will not only align India with international standards but also reaffirm the principle that marriage cannot be a license to violate dignity and bodily autonomy .
Ultimately, the journey towards reforms is not just a legal one but also a social transformation.It requires recognition that consent is central to all human relationships, including marriage. If the Supreme Court leads the way, India could take a historic step towards ensuring gender justice and equality in its truest sense.
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