Marital Rape and the Debate on Criminalising Spousal Immunity
In India, marriage has long been considered a sacred institution, a bond built on trust, companionship, and mutual respect. Yet, behind the closed doors of many homes, countless women suffer in silence — violated not by strangers, but by the very men they are married to. The issue of marital rape — the act of a husband forcing his wife to have sexual intercourse without her consent — remains one of the most debated and discomforting topics in Indian society.
Despite growing awareness and changing social attitudes, Indian law still does not recognise marital rape as a criminal offence. Under Exception 2 to Section 375 of the Indian Penal Code (IPC), sexual intercourse by a man with his own wife, if she is not under 18 years of age, is not considered rape. This “spousal immunity” rests on an outdated notion — that marriage implies permanent consent to sex. But consent, by
its very nature, must be free, ongoing, and revocable.
The Legal and Moral Dilemma
Supporters of the existing law argue that criminalising marital rape could destabilise the institution of marriage, lead to misuse of the law, and interfere in the “private sphere” of married life. They believe that domestic violence laws under Section 498A IPC and the Protection of Women from Domestic Violence Act, 2005 already provide adequate safeguards.
However, this reasoning fails to recognise that rape is not just a physical act — it is a violation of autonomy, dignity, and self-respect. When a woman says “no,” even to her husband, that refusal should be respected. Marriage cannot be a licence to violate a woman’s body.
The courts have started to question this immunity. In 2017, the Supreme Court in Independent Thought v. Union of India read down Exception 2 to Section 375 — making sex with a wife aged between 15 and 18 a criminal act. The judgment recognised that the age of marriage does not erase a girl’s right to bodily integrity. Yet, the larger question — should marital rape be criminalised for adult women — remains unanswered.
The Ongoing Debate
In 2022, the Delhi High Court delivered a split verdict on the issue. Justice Rajiv Shakdher held that the marital rape exception is unconstitutional, while Justice C. Hari Shankar disagreed. The case has now reached the Supreme Court, which will soon decide whether the law must change. This verdict will have historic consequences — shaping how India defines consent, equality, and marital rights.
Globally, more than 100 countries have criminalised marital rape, including the UK, the US, Nepal, Bhutan, and South Africa. India, despite its constitutional guarantees of equality and dignity under Articles 14, 15, and 21, lags behind. The international community, through instruments like the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), also urges states to recognise and penalise marital rape.
The Way Forward
The debate is not merely about punishing husbands but about acknowledging that a wife’s consent matters. Criminalising marital rape would not destroy marriages; rather, it would strengthen them by ensuring mutual respect and trust. The fear of misuse cannot justify denying justice to millions of women who live in silent suffering. Misuse is a concern with every law, but that has never been a reason to deny a law itself.
What is needed is a balanced approach — one that defines marital rape clearly, includes safeguards against false cases, and ensures fast-track justice for genuine victims. Sensitisation of police, awareness campaigns, and marital counselling mechanisms must accompany legal reform.
Conclusion
Marriage should never be a shield for violence. The right to say “no” — even within marriage — is at the heart of personal liberty and human dignity. As India moves forward as a modern democracy, it must confront the uncomfortable truth that equality cannot exist without consent.
Criminalising marital rape is not just about changing the law — it is about changing mindsets, affirming that a woman’s body is her own, and ensuring that marriage remains a partnership, not a prison.
