The continued exemption of marital rape from criminal law exposes how the Indian state prioritises patriarchal order over women’s bodily autonomy, dignity, and right to justice.
By Debasree Sarkar
Groundxero| December 29, 2025
Despite constitutional guarantees of equality, dignity, and personal liberty, Indian law continues to deny married women protection from sexual violence within marriage. The persistence of the marital rape exception exposes deep contradictions between legal doctrine, constitutional values, and lived realities of women.
Recently, Congress MP Shashi Tharoor introduced a private member’s bill in the Lok Sabha to amend the Bharatiya Nyaya Sanhita (BNS) and remove the marital rape exception. He asserted on his X handle that, “India must uphold its constitutional values and move from ‘No Means No’ to ‘Only Yes Means Yes’. Every woman deserves the fundamental right to bodily autonomy and dignity within marriage—protections our legal system fails to provide. Marital rape is not about marriage but about violence. The moment for action has arrived.” This once again reignited a long-standing debate over India’s approach to marital rape and women’s security.
“Marital rape” is a term that does not exist legally in India, and yet it frequently appears in the news. For example, on December 11, 2017, a woman from Jagdalpur, Chhattisgarh, stated in her dying declaration before a magistrate that her husband had forced her to have unnatural sex against her will, which caused her pain and illness. On February 11, 2019, the Additional Sessions Judge of the Jagdalpur Trial Court convicted the man under Sections 377 (unnatural sex), 376 (rape), and 304 (culpable homicide) of the Indian Penal Code (IPC) and sentenced him to 10 years of rigorous imprisonment. The accused, however, appealed against the verdict in the Bilaspur High Court. During the hearing, his lawyer claimed that his client had been convicted of multiple crimes based solely on the statement of the deceased, despite the absence of any “legally admissible evidence”. Interestingly, according to Section 32 of the Indian Evidence Act, 1872, which was in force at the time, an accused can be convicted solely on the basis of a dying declaration, and it is not mandatory to verify the statement from other sources.
The prosecution argued that the man had engaged in forceful and unnatural sexual intercourse with his wife, inserting his hand into her anus, which allegedly led to severe pain and ultimately contributed to her death. Despite this, a single-judge bench of Justice Narendra Kumar Vyas acquitted the accused of all charges and ordered his immediate release from jail. The High Court verdict cited Exception 2 under Section 375 of the IPC, which exempts a husband from prosecution for raping his wife, underscoring the continued legal immunity afforded to marital rape: “It is quite clear that if the wife is not below 15 years of age, then any sexual intercourse or sexual act by the husband with his wife cannot be termed as rape… As such, the absence of consent of the wife for an unnatural act loses its importance.”
When the minimum age for women to have consensual sex was raised from ten years (as in the IPC of 1860) to 12 in 1891, it faced serious criticism from orthodox sections of society, mainly on the grounds that it interfered with the sacramental nature of Hindu marriage. Historians like Tanika Sarkar have shown that women’s opinions were virtually absent from the debate. In the 1940s, the age of consent for women was set at 16 years, and in 2012 it was raised to 18. However, in 2013, an amendment to Section 375 of the IPC provided an exception stating that sexual intercourse or sexual activity by a man with his own wife cannot be considered rape. Therefore, if a husband has “unnatural sex” (as defined by Section 377) with his wife, that too cannot be considered an offence.
On October 11, 2017, the Supreme Court, in a case relating to children’s rights and safety, declared that this exception to Section 375 is an arbitrary rule and violates the fundamental rights enshrined in Articles 14, 15, and 21 of the Constitution. In this landmark judgement, the Court held that a husband cannot have sexual intercourse with his wife if she is between 15 and 18 years of age, even with her consent.
However, married women over the age of 18 have no legal protection from sexual violence committed by their husbands. It is on the basis of this legal position that Justice Vyas acquitted the accused, because in the context of a marital relationship, the wife’s consent is deemed unnecessary for establishing sexual consent, as marriage presumes consent. It may be questioned whether all laws that criminalise cruelty to wives or seek to protect women from domestic violence are rendered irrelevant in cases where husbands cause physical and mental harm through sexual violence. It must also be noted that Justice Vyas acquitted the accused of the charge of culpable homicide as well.
Marital rape is not an isolated phenomenon. According to the National Family Health Survey-5 (2019–21), nearly one in three Indian women aged 18–49 have suffered some form of spousal violence, and around 6% have suffered sexual violence. A 2019 study found that 40% of women who reported domestic violence during pregnancy also faced sexual violence from their husbands. According to women’s rights activist Flavia Agnes, marital rape is a continuation of the vicious cycle of domestic violence that pushes women towards a life of humiliation and despair. Yet, a married woman cannot demand justice for the sexual aggression of her husband, even if it results in physical or mental harm or even death. The enactment of the BNS, replacing the IPC, has not altered this situation.
While explaining the Fundamental Rights of Indian citizens, Article 14 of the Constitution states, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” How, then, is it reasonable to differentiate between married and unmarried women, as well as among married women based on age, within the legal system? Similarly, Article 21 states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” This provision has been interpreted by the Supreme Court in several judgements to extend beyond the literal meanings of life and liberty to include all aspects essential for living a dignified life, including the rights to privacy, health, dignity, and a safe environment.
In Justice K.S. Puttaswamy (Retd.) vs. Union of India, the Supreme Court acknowledged the right to privacy as a fundamental right under Article 21 and held that it includes “decisional privacy”, encompassing intimate personal choices, particularly those relating to sexual and reproductive autonomy and decisions regarding intimate relations. This judgement does not discriminate between the rights of married and unmarried women. Can the right to privacy guaranteed to every individual, then, be lost in the context of marriage for women?
At the time of the enactment of the IPC in 1860, under British rule, a woman’s sexuality was considered the property of her husband, reflecting the puritanism prevalent in pre-Victorian and Victorian England. Sir Matthew Hale, a seventeenth-century Chief Justice of England, observed that “The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband, which she cannot retract.” This colonial mindset disregarded the individuality of married women. The UK and other British colonies have long since overturned this principle, but India has not.
The decision to view marriage as a sacrament—made primarily on the basis of Hindu religious customs, despite India being a multi-religious country where in many traditions marriage is a contract based on mutual consent—is a regressive attitude that aligns with colonial prejudices. It upholds marriage as a woman’s eternal and unconditional consent to sexual intercourse with her husband. Immunising men who engage in coerced sexual acts against their wives, causing harm to their physical and mental health, infringes upon women’s right to live a life of dignity.
It is therefore essential that lawmakers have a clear understanding of sexual consent and recognise that everyone—married or unmarried, men or women—has equal rights to make sexual decisions. The repercussions of rape are the same whether a woman is married or unmarried. In fact, the consequences may be more severe for married women, who often have to live with their perpetrators, making escape from abusive situations even more difficult.
Given the long history of social movements for the betterment of women’s conditions, the contributions of women across fields in building modern Indian society, and 75 years since the recognition of equal rights for men and women in the Indian Constitution, must we accept that a woman does not even have the right to say no to sex and is condemned to a life of misery simply because she is married? Does this legal framework sustain the institution of marriage, or does it merely protect patriarchal privilege? In this scheme, women are not treated as individuals with rights and dignity but as bodies that can be used at will, with or without consent.
Debasree Sarkar is pursuing Ph.D. from the Department of History, Diamond Harbour Women’s University, Sarisha. She can be reached at debasree.his@icloud.com