Written by Amritava Pramanik,
Intern-Lex Lumen Research Journal,
June 2025
India is at a crossroads where tradition collides with modernity, resulting in a tangled paradox in the realm of women’s rights. The country has made tremendous advancements in many aspects of gender equality, yet a striking void allows grave injustice to persist within marriage the lack of laws that criminalize a husband raping his wife. This paradox of human differences is a provocative insight to spend a lifetime in a reality where a woman’s consent is rendered meaningless once she says I do, and where millions of women are exposed to sexual violence by their spouse or partner.
The Legal Landscape: A Colonial Legacy Persists
Section 375[1], the provision of rape in the Indian Penal Code (IPC), has exceptions which states that the act of intercourse or sexual act by a man with his wife, not below 15 years, is not rape even if it is without her consent. This provision specifically provides that “sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape”. This exception continues in the new Bharatiya Nyaya Sanhita, with a liberalised threshold under the recently introduced law changed from 15 to 18 years. Although this amendment deals with child marriage, it cannot solve the core issue of non-consensual sex within an adult marriage.
The legal context establishes an alarming line in the sand between married women and non-married women. An unmarried woman has the right to seek prosecution, but that right vanishes upon marriage. This exception designates India to be famously one of the 36 countries around the world which have not considered marital rape a crime; joining the ranks of Afghanistan and Saudi Arabia.
The Government’s Stance: Protecting Marriage Over Women
The attitudes underlying the government stance on criminalizing marital rape underlie a deep-seated cultural prejudice and pattern of denial. The Ministry of Home Affairs formally objected to pleas against criminalizing marital rape in 2024, claiming that criminalization would be extremely harsh as it would amount to cruelty towards the husband that could destroy the institution of marriage[2]. In their affidavit to the Supreme Court, the government reiterated that husbands have no fundamental right to force themselves on their wives, but that for marriage to be valid as a sacrament, the act of a husband raping his wife would fall into a debatable category, if at all considered a punishable offense.
Such a position shows a disturbing preference for the institution of marriage at the expense of individual rights[3]. The government suggests that consent has a different legal meaning where the parties are married, and that one should instead expect “reasonable sexual access” between spouses. This kind of thinking continues to rely on the ancient assumption that marriage equals permanent consent, where wives are treated as objects possessed rather than independent human beings.
The Human Cost: Statistics That Speak Volumes
Country reports on marital rape in India reveal a gruesome trend of sexual abuse within marriage. Nearly one in three Indian women, aged 18-49, have experienced spousal abuse, and they’re not the only ones: some 6% of them have faced spousal sexual violence, according to the National Family Health Survey-5 (2019-21). Sexual violence is most common when it is directed at women, when it is perpetrated by my colleagues 82% of women who experience sexual violence are 99.1% of women who are raped by their husband never report the incident.
Marital rape prevalence has been observed to vary from 2% to as high as 56% in various studies, and the prevalence of sexual coercion by intimate partners is 9% to 80%. These are horrifying statistics, which illustrate the scale of the problem and demonstrate just how necessary legal protections are. There are multiple reasons for underreporting of marital rape such as societal stigma, economic reliance, and lack of policy recourse.
Psychological Impact: The Hidden Wounds
The psychological effects of rape experienced in the context of marriage tend to be even worse than those occurring in other situations. Women who are raped in marriage suffer from PTSD, depression, anxiety and very low self-esteem. The closeness of the relationship is what makes the trauma amongst the most harmful, because the survivors have to go on living with their abusers.
Research demonstrates that marital rape victims have higher scores on psychological distress scales than battering victims of stranger rape[4]. The constant abuse, as well as societal pressures to stay in the marriage, can perpetuate a cycle of trauma that lasts for years. Victims also feel ashamed, guilty and self-blame that is particularly experienced in a society where responsibilities for creating a stable marital ambience are perceived to be the women’s.
Cultural Barriers: The Sacred Institution Argument
It is also deeply embedded in the cultural belief system about marriage and gender roles, and the resistance to criminalising marital violence is from the Indian society. Marriage is frequently perceived as a virtuous occupation whereby women should be weak and passively accept the needs of their husbands. And such a cultural environment encourages women to internalise values of “silence,” “tolerance”, and “adjustment”.
The notion that criminalising spousal rape would undermine marriage is based on a misunderstanding of what makes a healthy partnership. Critics say that India should be proud of its low divorce rates. Divorced women are treated as pariahs in many communities here, and ignore the fact that many marriages continue only because women quietly accept physical violence and other abuse. This conspiracy of silence (mandated by patriarchy) helps sustain and perpetuate a continuum in which women are made to endure suffering as routine, in the name of honour and preservation of family.
Judicial Perspectives: A Divided Approach
The Indian judicial system has been inconsistent about the marital rape debate. In 2022, the Delhi High Court gave a split verdict on the matter, where Justice Rajiv Shakdher supported criminalising marital rape, whereas Justice C. H. Arij Shankar opposed it. Justice Shakdher held that the marital rape exception is ultra vires Article 14[5] of the Indian Constitution and hence is illegal.
In a landmark judgment the high court in Kerala, set a trend in the right direction by acknowledging marital rape as a valid reason for divorce, a radical departure from our age-old perceptions. Where, however, some courts such as the Chhattisgarh High Court have applied the marital rape exception, judicial opinions are divided on this most critical issue.
International Standards: India’s Isolation
India’s position on marital rape is decidedly and sharply at variance with the international human rights norms and standards. India’s stance violates its obligations under several international treaties, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Marital rape has been criminalized in more than 150 countries around the world, as a clear breach of fundamental human rights. The global community is increasingly talking about the need for consent within marriages and for challenging the narrative that marriage automatically means consent for sex.” Countries in Europe, North America, and much of Africa have enacted sweeping legal reforms recognizing marital rape as a crime no different from any other form of sexual assault.
The Path Forward: Towards Justice and Equality
The struggle to turn Marital Rape into a Criminal Offense in India needs to be fought on multiple fronts: the Legal and the social and the cultural aspect. What must change? The marital rape exemption must be removed as a first step to legal reform. This entails providing sufficient support systems as well as counselling and rehabilitation for victims.
Campaigns on education and awareness are important as tools to transform the attitudes in society toward marriage and consent. Education for communities is needed to teach them how mutual respect and consent should be the central tenets of any relationship, and challenge the old-fashioned social codes that justify violence against women. At the same time, civil society organisations, activists and lawyers seeking change need to remain vocal and to stand by survivors.
Conclusion
The paradox of marital rape in India exposes the gap between the constitutional promise of equality and the actual reality of many women. The persistence of this legal loophole is not just a violation of women’s human rights, but also a blight on the country’s claim to justice and human dignity. The true sign of growth would be to understand that consent isn’t left at the door of marriage and a woman’s body is sacrosanct, irrespective of whether she’s married or not.
It is time to ensure that our laws truly reflect what the Constitution and international law envision. Making marital rape a criminal offence is not about wrecking the institution of marriage but to safeguard the very basic rights of the women involved in it. It is only by confronting this paradox that India can rightly boast of being a country that heroises equality, dignity, and justice for all its citizens.
[1] The Indian Penal Code, 1860, § 375, No. 45, Acts of Parliament, 1860 (India).
[2] Geeta Pandey and Cherylann Mollan, India government says criminalising marital rape ‘excessively harsh’, BBC (June. 20, 2025, 12:30 PM), https://bbc.com/news/articles/c80r38yeempo.
[3] Jessie Krienert and Jeffrey A Walsh, An Examination of Intimate Partner Sexual Violence: Comparing Marital and Nonmarital Incidents Employing NIBRS Data, 2008–2012, ResearchGate, (June 20, 2025, 12:55 PM), https://connect.springerpub.com/content/sgrpa/9/1/41.
[4] Griswold v. Connecticut, 381 U.S. 479 (1965)
[5] INDIA CONST. art. 14.
