Does Marital Rape Need to be Criminalized?

ABSTRACT

In India, marital rape persists without legal recognition, shielded by Section 375 of the IPC, which exempts husbands from prosecution if the wife is over 15.[1] This gap leaves women unprotected against violence within marriage. Calls for reform, like those from the Justice Verma Committee after the 2012 Nirbhaya case, stress that marriage should never equate to automatic consent[2].

However, India remains among 30 countries yet to criminalize marital rape a stark reminder of the pressing need for change.[3]

Objective

Policy: Respect the No: A Right to Consent in Marriage

Consent as a Right: Reinforces that marital consent is a fundamental right, aligned with Articles 21

(personal liberty) and 14 (equality).

Bodily Autonomy in Marriage: Affirms that the spouse cannot exploit personal autonomy.

Contractual Basis: Treats marriage as a mutual agreement under the Indian Contract Act, of 1872, where disregarding consent can be coercion.

Contemporary Relevance

Marital rape remains underreported in India, with 83% of women facing sexual violence identifying their present husbands as perpetrators (National Family Health Survey 2019-21). [4]

Globally, 2.6 billion people live in countries, including India, where marital rape is unpunished.[5] Recognizing it as a crime would align India with modern human rights standards.

The NCRB’s 2019 report indicates that 70% of Indian women experience domestic violence, and the 2011 International Men and Gender Equality Survey shows that 1 in 5 men has forced sex on a partner.[6]

Understanding the Policy

1. Consent as a Constitutional Right

Consent is essential in marriage, upholding a spouse’s right to bodily autonomy and protecting rights under Articles 21 and 14 for equality and dignity.

2. Age-neutral protection for Spouses

This policy ensures equal protection in all marriages, removing age-based exceptions.

3. Mutual Agreement under Indian Contract Law

Marriage, as a mutual contract, must honor consent. Ignoring a spouse’s refusal constitutes coercion under the Indian Contract Act, 1872, necessitating legal action.

INTRODUCTION

“Of all the evils for which man has made himself responsible, none is so degrading, so shocking or so brutal as his abuse of the better half of humanity; the female sex.”

—Mahatma Gandhi

Rape is a heinous act of sexual intercourse committed against any natural person forcefully without the consent of such person. Rape has been contained within the ambit of sexual assault, which also includes acts that fail to be regarded as intercourse, by several regimes.

Section 375 of the Indian penal code defines rape as an act committed by a man against the will and without the consent of a woman.

Marital rape is one of those uncomfortable topics that tend to get pushed aside, despite its real-world impact. It is one of the most common and vile forms of masochism in Indian society hidden behind the steely drape of matrimony.

Marital rape remains a grim reality veiled by the institution of marriage, where the title of “husband” is sometimes misused to justify violence and strip a wife of her autonomy.

The need is to understand that consent is not just a two-letter word like “no“; it is the shared foundation of a relationship, built on the mutual will and agreement of both partners over their bodies and shared activities. Tragically, many women are coerced into submission under threats of harm to themselves or their children, fear of losing their homes, or denial of financial support. This is not consent—it is control, transforming what should be an act of intimacy into an act of violence.

Cultural beliefs like Pati Parmeshwar, which elevate husbands to a god-like status, compel women to endure unimaginable cruelty in silence. While India’s low divorce rate [7]is often celebrated, it hides a harsher truth: many women remain in abusive marriages due to financial dependence or lack of familial support.

The toll of marital rape extends far beyond the moment of violence, leaving both physical and emotional scars—internal injuries, trauma, and a lifetime of suffering.

Despite this grim reality, marital rape remains unrecognized as a crime in India.

METHODOLOGY

This study employs a combination of qualitative and quantitative approaches to comprehensively address the subject of marital rape. Statistical data about marital rape cases have been analyzed to provide a quantitative foundation for the research. Alongside this, qualitative insights are drawn from examining case laws and the figurative composition of related facts to offer a nuanced understanding of the issue.

Additionally, the paper integrates a theoretical perspective, including the formulation of our proposed policy, which constitutes a significant component of the research framework. This multi-faceted methodology ensures a balanced exploration of both empirical evidence and conceptual discourse.

HISTORY OF MARITAL RAPE

Let us ride through the chronology of the legal and legislative actions in the ambit of Marital Rape[8]–

After the feminist movement of the 1970s, justifications for excluding marital rape from legal recognition began to lose traction. Women were increasingly seen as equals to men, leading to more nuanced discussions around the issue. One such argument, the “implied consent” theory, presumes that marriage automatically grants consent for sexual acts, which effectively shields husbands from legal consequences if they force sex on their wives.

The Indian Penal Code (IPC) under Section 375 defines rape expansively, including both sexual intercourse and other forms of sexual penetration. However, Exception 2 of this section excludes sexual acts between a husband and wife, meaning a wife has no criminal recourse if her husband rapes her. This exclusion continues despite evolving societal views on consent.

The 42nd Law Commission Report, which was one of the first to tackle this issue, suggested that the exception should not apply in cases where the couple is judicially separated. However, it did not address whether this exception should be entirely removed. Ultimately, the report reflected a belief that marital rape is a less serious crime compared to other forms of rape, reinforcing the notion that marriage should remain free from criminal interference. Yet, this view fails to recognize the importance of consent in every relationship, regardless of marital status.

In 2012, the Justice Verma Committee made a bold recommendation, calling for the removal of Exception 2 and recognizing marital rape as a punishable crime regardless of the wife’s age or marital status. Unfortunately, this recommendation was not adopted in the Criminal Law (Amendment) Act of 2013, and marital rape continues to be addressed only under the Protection of Women from Domestic Violence Act, 2005, offering civil remedies but no criminal punishment.

When the Standing Committee reviewed the 2012 amendment in public consultations, there were repeated calls for the deletion of Exception 2 to Section 375. However, they rejected these suggestions, arguing that criminalizing marital rape would disrupt the family system. This view was echoed by the Ministry of Home Affairs in 2015, which stated that the concept of marital rape, as understood internationally, could not be applied in India due to cultural beliefs that view marriage as a sacrament, with men holding the dominant position.

Despite growing awareness, India retained the marital rape exception in Section 375 IPC even during the 2013 amendments. The newly passed ‘Bharatiya Nyaya Sanhita, 2023’, continued this stance, perpetuating the legal exemption for marital rape.

In 2022, the Supreme Court acknowledged marital rape under the MTP Act, granting women the right to abort pregnancies caused by such acts. However, this acknowledgment remained limited to specific contexts and did not criminalize marital rape overall.

In October 2024, the government opposed striking down the marital rape exception, arguing that while marital rape is a violation of a woman’s rights, labeling it “rape” within marriage might be too harsh. Instead, it emphasized existing laws like the Protection of Women from Domestic Violence Act, 2005, as sufficient for addressing such violations.

PROMINENT CASES-

Let us take a glance at the prominent cases that have rigorously examined the issue of marital rape and delivered judgments that could serve as a cornerstone for shaping future policies.

R v R (1991)[9]

This case stemmed the question of whether a husband could be convicted of raping his wife?

Fact:

Due to marital disputes, the wife left the matrimonial home and expressed her intent to divorce through a letter. The appellant also indicated that he agreed to divorce, one day the appellant entered the house where his wife was living with her parents and attempted to forcefully have sexual intercourse with her, despite her refusal. He also assaulted her when she continued to resist.

Issues:

Whether marriage implied perpetual consent to sexual intercourse, preventing a husband from being charged with raping his wife.

Judgement:

The House of Lords ruled that the common law fiction of marital rape immunity had no place in modern law. It held that marriage does not grant implied, irrevocable consent to sexual intercourse. Consequently, the husband was convicted of raping his wife and sentenced to three years of imprisonment for attempted rape, along with an additional eighteen months for sexual assault.

This landmark decision abolished the marital rape exemption in English law.

R v. Clarke (1949)[10]

Facts:

In this case, the wife obtained a court separation order with the clause that she is no longer bound to cohabit with her husband. Notwithstanding the restraint imposed by the court, her husband had sex with her against her consent, and in the process, caused her bodily harm.

Issues:

The husband was indicted for an act of rape against his wife.
An appeal to quash the charge was presented on the ground that the husband cannot be charged for the offense of rape of his own wife.

Judgement:

Justice Byrne J agreed that the husband cannot be held guilty of rape, with the exception in the instant case being the forfeiture of the husband’s right to have non-consensual sex with his wife as specified in the court order. The court held the husband guilty as an act of forcing sex on his unwilling wife constituted rape.

Independent Thought v. Union of India (2017)[11]

Facts: Independent Thought, an NGO working for children’s rights, filed a PIL in the Supreme Court of India challenging exception 2 to section 375 of IPC, as it violates the rights of the married girl child between the age of15 and 18 years, as it constitutes rape by husbands.

Issues:

Whether sexual intercourse between a man and his wife between 15 and 18 years of age is rape?

Judgement:

The Supreme Court struck down exception 2 to section 375 of IPC, as unconstitutional. The judgement makes sexual intercourse by a husband without his wife’s consent, who is under 18 years of age, a crime.

As observed in the aforementioned cases, India’s stance on the criminalization of marital rape appears to be significantly influenced by the age factor—with legal exceptions tied to the age of the wife.

However, in many other countries, the focus shifts to consent as the defining factor, emphasizing the right to bodily autonomy and restoring an individual’s dignity and control over their own body as inviolable rights.

This shifts the discussion towards identifying the list of some of the famous countries where marital rape is criminalized and where it remains unaddressed, offering a broader perspective on how different nations view this critical issue.

CRIMINALISED MARITAL RAPE [12]	NOT CRIMINALISED MARITAL RAPE[13]
Australia	Pakistan
Azerbaijan	Bangladesh
Belgium	China
Bhutan	Haiti
Brazil	Laos
Canada	Mali
Finland	Myanmar
Japan	Senegal
Nepal	Nigeria
Qatar	Singapore
Turkey	India

ARGUMENTS FOR CRIMINALISING MARITAL RAPE

Consent and Autonomy: Marital rape guidelines complement that marriage doesn’t recommend ceaseless consent to sexual development.

Gender Imbalance in Marriage: Marital rape laws recognize and confront the existing gender inequalities within marital relationships. These laws challenge the outdated notion that marriage grants husbands control over their wives’ bodies women in subordinate roles.

This ensures that a woman’s autonomy, consent, and equality are respected within the marriage.

No justification for sexual abuse: By censuring marital rape, the guideline sees that attack is bad behavior regardless of what the relationship is.

Psychological, physical, and emotional aspects: Marital rape can have extreme mental, physical, and emotional repercussions.

ARGUMENTS AGAINST CRIMINALISING MARITAL RAPE

Disintegration of family values: A few opponents of criminalization fight that it could disintegrate standard family values by spoiling the blessedness of marriage.

Challenges in Proving Marital Rape- Proving non-consensual sex within a marriage can be difficult due to challenges like lack of evidence or inconsistent testimonies, making the legal process complex.
Security and interruptions: A few opponents battle that principles against individual attack could incite improper interruptions by the state into pleasant and gathered pieces of hitched life.

HOW WILL OUR POLICY ADDRESS THE ISSUE?

Our policy, titled “Respect the No: A Right to Consent in Marriage,” addresses 2 critical and often neglected aspects:

A. The Power of ‘No’:

This aspect emphasizes the fundamental importance of respecting a woman’s refusal, which is often treated as insignificant or dismissed entirely.

Here, “No” goes beyond personal choices; it is a refusal in matters involving both partners. Marriage does not dilute this right—it should reinforce the understanding that a woman’s autonomy is non-negotiable. A simple “No” must be seen as a complete statement, not something to be negotiated or overridden, ensuring equality and respect in a marital relationship.

B. The Misinterpretation of Implied Consent in Marriage:

Marriage is often misconstrued as granting implicit consent from the wife for sexual relations. Our policy challenges this assumption, asserting that while marriage legitimizes the possibility of intimacy, it does not authorize forced or non-consensual acts.

For comparison, just as marriage does not give a wife the implied consent to own her husband’s material assets simply because of their legal bond, it likewise cannot grant a right over the other’s body without explicit consent.

A person’s right over their body is natural and inalienable, surpassing any legal or societal constructs of marriage. Consent in marriage must be mutual, continuous, and unequivocal, with the institution reinforcing, not undermining, this principle.

PURPOSE OF OUR POLICY

Consent in marriage is not optional—it is a fundamental right.

Our policy shines a spotlight on marital rape, addressing it as a violation not just of the body but of mental and emotional sanctity, and calls for immediate societal and legal reform.

The Harsh Reality –

Social Stigma: Cultural beliefs that prioritize “marital harmony” over victims’ dignity and freedom silence them. This instils the unparallel concept of husbands being dominant in marital bonds and the choice of wife is undervalued.

The Legal Lens –

Equality for All: Under Article 14, both spouses hold equal rights in consent—marriage is no exception.
Liberty and Dignity: Article 21 guarantees personal liberty and the right to live with dignity. Submission to coercion for erotic desires defies this very principle.
Common Legal Principles Across Indian Laws on Marriage-

A] Consent: Free and mutual consent forms the cornerstone of a valid marriage. Hence this implies that consent does not have any age bar when it comes to forming a healthy relationship. Putting 15 years of age as an exception can harm women beyond this age bar.

B] Registration: Civil registration ensures the legal validity of the marriage.

It underscores that marriage is a societal construct and a partnership built on equality and acknowledgment of individual freedoms.

Legislative Action-

Recognize marital rape as a criminal offense, removing all exemptions.
Align punishments for marital rape with those for non-marital rape.
Clearly define consent in legal terms, asserting that marriage does not imply perpetual or irrevocable consent.

Marriage should be a union of respect, not a license for coercion. Through societal awakening and legal reforms, we can ensure consent is non-negotiable, dignity is protected, and every voice is heard.

MODE OF OPERATION

This policy is designed with multiple wings that will help it soar higher in the sky of justice, providing essential support to survivors while working toward societal reform and legal accountability.

Aide for Survivors:

Confidential Reporting System: A dedicated, confidential reporting mechanism will be established to ensure the survivors feel safe in coming forward.
Specialized Support Units: Specialized units will handle marital rape cases, with a higher number of female officers to create a comfortable environment for survivors. In rare cases where the victim is male, a segment of male officers will also be included to address those instances.

Government-Supported Guidance and Care:

Run Care Missions: Government-backed missions in every district or state will challenge myths about intimate capabilities and raise awareness on the importance of consent in relationships.
Educational Integration: Consent and relationship values will be incorporated into school curricula to foster awareness from an early age.

Training:

Training of Authorities: The policy will ensure thorough training for police, advocates and healthcare providers, emphasizing sensitivity, awareness, and competence when handling marital rape cases. Psychological intricacies will also be addressed in training to ensure a holistic understanding of the trauma faced by survivors.

Monitoring and Data Collection:

National Survey: A national survey will be conducted to assess the prevalence and response effectiveness to marital rape cases, encouraging women to report unreported cases. By providing a legal support structure, the survey will empower women to share their experiences without fear.
Feedback Mechanisms: Feedback from survivors and advocates will be regularly collected to refine and improve justice systems and policies.

Evidence Monitoring and Case Management:

Medical and Forensic Assessments: Comprehensive medical evaluation of injuries, including treatment for physical injuries, assessment for pregnancy and STIs, and forensic evidence collection.
Psychological Evaluation: Survivors will undergo a psychological assessment to evaluate trauma. Those requiring specialized care will be referred to local rape centres, where trained professionals will provide support.

Forensic and Incident Documentation[14]:

Injury Documentation: The type of injuries sustained, particularly to sensitive areas like the mouth, breasts, vagina, and rectum, will be documented to assess the severity of the assault and potential risks such as HIV or hepatitis transmission.
Detailed Attack Description: Information on which orifices were penetrated, whether ejaculation occurred, or whether a contraception was used will be recorded. The use of aggression, threats, weapons, and violence will also be noted.

This multi-faceted policy approach ensures a balanced, fair, and compassionate handling of marital rape cases, with an emphasis on supporting survivors, ensuring justice, and preventing further harm.

PUNISHMENT INVOLVED IN THE POLICY

1. Clear and Fair Punishment:
Perpetrators will face 2-5 years of imprisonment followed by therapy sessions, helping them understand the harm caused.

For severe cases involving repeated assault or physical injury, the sentence increases to 5-10 years without parole.

2. Financial Penalties for Accountability:
Heavy fines will be imposed on offenders along with imprisonment, funds shall be directed to survivor support services.

3. Counselling and Rehabilitation:
Perpetrators must attend mandatory programs during the tenure of punishment like anger management, behavioural therapy, and sexual violence rehabilitation to prevent reoffending and ensure they understand the seriousness of their actions.

4. Survivor Safety and Rights:
Strict no-contact orders will protect survivors from further harm. In cases involving children, offenders may also lose custody rights if their actions are harmful. Survivors will also be protected in property and asset division during divorce.

POLICY CHALLENGES AND THEIR SOLUTIONS

The criminalization of marital rape is a complex and controversial topic. It is essential to recognize the rights and consent of individuals within marriage.

Even though it is very difficult to weigh these drawbacks against the benefits of criminalizing marital rape, but still these drawbacks are very necessary to keep in mind while serving justice.

Legal and procedural challenges:

Difficulty in collecting proof and evidence, because most often marital rape occurs in private and hence making it difficult to collect evidence.

SOLUTION- The scientific tests done on the bodies, assessment of the psychological health of the victim, and polygraph can be some possible measures.

False allegations would be a great hurdle in serving justice.

SOLUTION- The character study of a couple in terms of a survey and interrogation with the family members and with the technological advancements there is also a leeway for the bodily tests to understand the abuse used on the body.

Marital rape often occurs in private and hence there would be a lack of witnesses.

SOLUTION- Evidence can be the substitute for the witnesses. If a policy is in existence, then it will direct the victims to be cautious in collecting the evidence, and through the proper deployment of female officers the woman will be comfortable in sharing the evidence.

Social and cultural opinions:

Criminalisation of marital rape may lead to mistrust and challenge.

SOLUTION– Then forced sexual development can equally ruin the trust which a wife invests in her husband and this will ultimately be challenging for their relationship to grow on a healthier scale.

Criminalisation may upset the blessedness of marriage and create disturbance in the family.

SOLUTION- Does not a coercive and abusive use of male power on a female’s body upset the blessedness of a marriage? This will be also a disturbance for the family both mentally and physically as this can cause unwanted pregnancies as well.

Through a magnified lens, we have analyzed the challenges arising from our proposed policy, with a focused aim to identify and outline corrective measures that facilitate its smoother implementation.

CONCLUSION

To encapsulate, the legal exemption of marital rape under Section 375 of the Indian Penal Code perpetuates a harmful tradition where marriage is seen as a shield for violence, leaving countless women vulnerable.

Despite calls for reform from various committees, including the Justice Verma Committee, the legal system continues to neglect the fundamental human right of consent within marriage. The importance of recognizing marital rape as a criminal offense cannot be overstated, as it directly affects a woman’s bodily autonomy and emotional well-being.

By criminalizing marital rape, India can take a significant step toward upholding the principles of equality, dignity, and justice for all individuals, irrespective of marital status. Our proposed policy, “Respect the No: A Right to Consent in Marriage,” challenges the outdated assumption of implied consent and reinforces the necessity of mutual, explicit, and continuous consent within marriage.

This policy, along with broader societal and legislative reforms, will address the deep-rooted gender inequalities that allow marital rape to persist and foster healthier, more respectful relationships.

Legal recognition of marital rape as a crime is not just a legal imperative but a moral one, ensuring that the sanctity of marriage is rooted in mutual respect and consent, not coercion or violence.

[1] https://kanoongurus.com/blog/marital-rape-in-india-analysis-of-section-375-indian-penal-code/

[2] https://prsindia.org/policy/report-summaries/justice-verma-committee-report-summary

[3] https://www.ndtv.com/india-news/india-among-30-odd-countries-that-have-not-criminalised-marital-rape-2967547

[4] https://lawlex.org/lex-pedia/marital-rape-an-analysis-of-the-indian-judicial-standpoints/27068

[5] https://womensagenda.com.au/latest/2-6-billion-women-live-in-a-world-where-rape-in-marriage-is-not-a-crime/

[6] https://iasbaba.com/2020/12/marital-rape/

[7] https://www.indiatoday.in/education-today/gk-current-affairs/story/india-has-the-lowest-divorce-rate-in-the-world-1392407-2018-11-20

[8] https://nujslawreview.org/wp-content/uploads/2018/01/11-1-Raveena-Rao-Kallakuru-Pradyumna-Soni.pdf

[9] https://lawtutor.co.uk/r-v-r

[10] https://search.app/yvSxs66bwE659CfT7

[11] https://indiankanoon.org/doc/87705010/

[12] https://en.wikipedia.org/wiki/Marital_rape_laws_by_country