Written by Saanvi Taneja
Intern-Lex Lumen Research Journal
June 2025
Introduction:
A contract between two people that permits sexual activity is called marriage. As the meaning itself says marriage legalizes sexual intercourse it is meant that any sexual act in the course of the marriage is not wrong and is legal. Marriage is meant to be a safe space where two people respect and care for each other but when the law overlooks marital rape, it quietly tells women that their pain doesn’t count once they’re married.
Marital rape is sexual intercourse between married couples without the wife’s consent; what this basically meant was the husband exploited the sanctity of marriage to justify sexually assaulting his wife, asserting it as a marital right. Article 14 of the constitution gives the right to equality, but in the case of marital rape, this equality is not given to women. Generally, when a man has sex with a woman without her consent, it amounts to rape and is a criminal offense. The word ‘consent’ is the main factor which determines whether the act constituted as rape or sexual intercourse. India updates rape laws regularly but it still ignores marital rape.
After the horrific 2012 Delhi gang rape[1] case that shook the nation down to its core, the government set up the Justice J.S. Verma Committee[2] to reform violence around sexual violence. One of the key recommendations of this committee was that the exception of marital rape should be removed, the mere fact that the accused and victim are married ought not to be a defence for rape. Despite strong recommendations, the Criminal Law (Amendment) Act, 2013[3] introduced stricter punishment for sexual assault and brought within new definitions under the ambit of sexual offences.
Historical Perspective:
In ancient times, rape wasn’t seen as an act of violence against a woman but was seen as a theft of her father’s or husband’s honour. Women were like possessions, if they were harmed it wasn’t her pain that mattered but was an insult to the man who has possession of her.
Sir Mathew Hale, Chief Justice in 17th century England stated that “The husband can’t be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract upon his lawful wife hath given up herself this type unto her husband which she cannot retract”.
The Indian Penal Code (IPC) of 1860[4], which codified rape laws during the British colonial era in India, introduced prejudice of its own. It contained Exception 2 to Section 375[5], which said that if a woman was older than a specific age, a man could not be accused of raping her. Despite numerous reforms, this exception has persisted in India’s criminal code for more than 160 years.
Indian Scenario:
Section 375 of IPC[6] deals with rape, but there’s an exception- sexual intercourse by a man with his own wife without her consent, the wife not being under 18 years of age, is not rape. Initially the age of consent was 15 but it was raised to 18 by Supreme Court in the judgement of Independent Thought v. Union of India in 2017[7]. No matter how unwanted, or degrading the act — if it’s done by her husband, it isn’t legally rape. Not in the eyes of the law. Not even in 2025. It is like being violated in your own home and being told it doesn’t count instead being told ‘‘He’s your husband- it’s his right’’
The law stands biased and does not give equal protection to women. Sec 375 does address marital rape but with its limitation of age- if a woman is above 18 years of age and if she is married then the husband can have sexual intercourse without her consent.
If against the will and without the consent are 2 important features of rape, whenever it happens by any men before or after marriage is rape.
India stands with a small and shrinking group of nations including some middle eastern conservative and African nations where marital rape is not considered a crime. But elsewhere the world has moved on- The United Kingdom, US, Canada, China recognize marital rape as a punishable offence.
Constitutional Validity:
India’s marital rape problem poses a special constitutional conundrum. Although forced sexual relations within a marriage is still excluded from the definition of rape under Exception 2 to Section 375 of the Indian Penal Code, this clause is starting to seem to go against important constitutional rights, such as Articles 14, 15, and 21.
-Violation Of Article 14:
Article 14[8] talks about equality before the law and equal protection of law, but it does not give equal protection to all women in this scenario. When it comes to rape, the law draws a disturbing line- if a man rapes a woman, he can be punished but if he marries her first, he is immune. Two women, both sexually violated in the same manner, are treated entirely differently in the eyes of law, based solely on marital status. Thus, the law clearly discriminates between married women above the age of 15 and below the age of 15. Exception 2 of Section 375 of IPC by not giving punishment encourages doing any sexual act if they are a major and married, Thus, Article 14 of the Constitution is violated.
-Violation Of Article 21:
Article 21[9] of the constitution provides for the right to life and personal liberty. Over the years, the Supreme Court has interpreted this right to include- right to live with dignity, right to privacy and right to bodily autonomy. When a woman is forced to have sex against her will even by her husband- it’s a violation of everything Article 21 stands for It strips her of her autonomy, shatters her dignity, and reduces her to an object instead of a living, feeling individual. The Supreme Court in many of its judgements like Suchita Srivastava v. Chandigarh Administration 2009[10] where it was stated that the right to make choices in sexual activity is also included under the right to personal liberty which comes under the ambit of Article 21. Thus, any forced sexual desire does violate their privacy which is their fundamental right.
Conflict between various laws applicable in India:
India is a multi-religious country. While some laws recognize a woman’s right to dignity and bodily autonomy, others protect husbands from prosecution, creating a legal inconsistency. India’s laws against marital rape are not only out of date, but also contradictory. Certain laws acknowledge the suffering of women. Others act as though it doesn’t exist. Because of this, married women in India are caught between laws that pull them in different directions, but none of them provide complete justice.
-Indian Penal Code, 1860:
Section 375 of IPC provides a precise definition of rape. The exception, however, is a single, silent sentence that transforms everything: “It is not rape when a man engages in sexual activity with his own wife as long as she is not younger than fifteen.” This clause formally states that a husband has the right to have sex with his wife, with or without her consent, in addition to removing marital rape from the definition of rape. It would be equivalent to stating that a woman’s consent ends the moment she gets married. It has been more than 160 years since this law was last updated. It still retains the mindset of colonial times, when marriage was viewed as unquestioning, permanent consent and women as property. As of 2025, it continues to safeguard the husband’s privilege, not the woman’s autonomy.
-Protection of Women from Domestic Violence Act, 2005:
PWDVA[11] unlike IPC, it acknowledges the reality of abuse within marriage. Under Section 3[12], it is stated that “Any conduct of a sexual nature that buses, humiliates, degrades, or otherwise violates the dignity of a woman”- the law recognizes that forced sex in marriage is abuse. But this act is of civil nature, not criminal i.e. it allows women to seek protection, shelter, financial compensation but it does punish the husband for rape.
-International Commitments:
India is a signatory to:
- Convention on the Elimination of All Forms of Discrimination Against Women[13]
- UN Declaration on the Elimination of Violence Against Women[14]
Both of these international frameworks call on nations to acknowledge and make all forms of sexual violence, including those that occur within marriage, illegal.
They confirm what ought to be clear: Consent is important, the bodies of women are not objects. More than 30 years ago, in 1980, India signed and ratified CEDAW. By doing this, it committed to eradicating discriminatory laws and practices in a clear and binding manner.
Conclusion:
In India, marriage has long been revered as a sacred union of care, friendship, and trust. However, that bond ceases to be sacred and turns into an oppressive force when it is used as a weapon for violence and when the law remains silent. Marriage not only involves men but also includes women on the other side to balance the religious ceremony. Thus, we can conclude that India recognizes marital rape as a crime but, it refuses itself to enact proper laws and to codify the crime.
[1] Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1.
[2] Justice J.S. Verma Comm., Report of the Committee on Amendments to Criminal Law (Jan. 23, 2013),
[3] Criminal Law (Amendment) Act, No. 13 of 2013, India Code (2013).
[4] Indian Penal Code, No. 45 of 1860, India Code (1860).
[5] Indian Penal Code § 375, Exception 2, No. 45 of 1860, India Code (1860).
[6] Indian Penal Code § 375, No. 45 of 1860, India Code (1860).
[7] Independent Thought v. Union of India, (2017) 10 SCC 800.
[8] India Const. art. 14.
[9] India Const. art. 21.
[10] Suchita Srivastava v. Chandigarh Admin., (2009) 9 SCC 1.
[11] Protection of Women from Domestic Violence Act, No. 43 of 2005, India Code (2005).
[12] Protection of Women from Domestic Violence Act § 3, No. 43 of 2005, India Code (2005).
[13] Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13.
[14] Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, U.N. Doc. A/RES/48/104 (Dec. 20, 1993).
