Marital rape in India and it’s exception from criminal law
About
Marital rape in India is not yet criminalized, with the law still containing an exception for husbands under Section 375 of the Indian Penal Code, now Section 63 of the Bharatiya Nyaya Sanhita (BNS) 2023. However, recent judicial challenges, legislative proposals, and public debates are pushing toward reform.
Current Legal Position
- Section 375 IPC (Indian Penal Code) defines rape but includes an exception: sexual intercourse by a man with his own wife, provided she is not under 18 years of age, is not considered rape.
- This means marital rape is legally exempted, despite being recognized as a violation of bodily autonomy in most democracies.
Key Judicial Developments
- Delhi High Court (2022): Delivered a split verdict on petitions challenging the marital rape exception. Justice Shakdher held that the exception is unconstitutional, while Justice Hari Shankar upheld it, citing family sanctity and legislative intent.
- Supreme Court (2025, Hrishikesh Sahoo v. State of Karnataka): Currently examining whether the marital rape exception violates fundamental rights such as equality, dignity, and bodily autonomy under Articles 14, 19, and 21.
- Supreme Court’s stance: The matter is pending, but Chief Justice D.Y. Chandrachud and other judges have acknowledged the constitutional tension between protecting women’s rights and respecting legislative boundaries.
Legislative Efforts
- Private Member’s Bill (2025): Congress MP Shashi Tharoor introduced a bill to criminalize marital rape by amending the Bharatiya Nyaya Sanhita (BNS), India’s new criminal code. He emphasized moving from “No means no” to “Only yes means yes”, aligning with global standards.
- Colonial Legacy: The exception is rooted in colonial-era laws that treated wives as property, a relic increasingly criticized as incompatible with modern constitutional values.
Comparative Context
- Global Benchmark: Over 100 countries, including the UK, US, and Nepal, criminalize marital rape. India remains one of the few democracies retaining this exception.
- International Pressure: UN bodies and human rights organizations have repeatedly urged India to reform its laws to protect women’s rights.
Arguments in Debate
- For Criminalization:
- Upholds women’s constitutional rights to equality and dignity.
- Recognizes consent as central to marriage.
- Aligns India with international human rights standards.
- Against Criminalization (often cited by opponents):
- Fear of misuse of law and false cases.
- Concerns about destabilizing family structures.
- Belief that existing domestic violence laws are sufficient.
Emerging Trends
- Judicial activism and legislative proposals are converging toward reform.
- The Supreme Court’s pending decision could be historic, potentially striking down the exception.
- Growing civil society advocacy and political voices are keeping the issue alive in public discourse.
No final Supreme Court judgment has struck down the exception for adult wives as of December 2025; petitions are listed but unheard. Recent efforts include a private member's bill by MP Shashi Tharoor to amend BNS Section 63, highlighting ongoing debate. Marital rape may attract civil remedies under the Protection of Women from Domestic Violence Act, 2005, but not rape charges.​
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