The Controversy of Marital Rape Laws in India

1.Introduction

In India, the marital rape exception – under section 375 (2) of Indian Penal Code (IPC) and its successor Section 63(2) Bhartiya Nyaya Sanhita (BNS) continues to be a contentious legal anomaly. These provisions hold that sexual intercourse by a husband with his wife (aged 18 or above) is not considered rape. This rooted colonial-era principle clashes head-on with modern idea of bodily autonomy, consent, and constitutional guarantees of equality.

As the supreme court gears up for a definitive ruling on petitions challenging this exception ( e.g., Hrishikesh Sahoo v. Karnataka) and with evolving special attitudes, India stands at a pivotal juncture: should marriage automatically imply consent? 

2.Historical and Legal of Coverture

2.1 Colonial doctrine of coverture

Originating from English common law, the doctrine of coverture declared a married women legally subsumed by her husband, forfeiting her independent legal and sexual agency. In 1860, the IPC codified  thus by excluding husbands from rape prosecution , a vestige still retained in modern legislation such as the Bhartiya Nyaya Sanhita.

2.2  Judicial interventions over time

·         Independent thought v. UOI [2017]: Supreme court read down Exception 2[1] so that it applies only if the wife is 18+, elevating the age-of-consent benchmark while uploading immunity for adult wives

·          Karnataka high court (March 2022): Justice Nagaprasanna boldly declared the exception “not absolute” stating marriage cannot grant a “brutal beast” license to the husband.

·         Gujarat HC(2018) & Kerala HC (2021): Judiciaries emphasized marital rape as a crime and valid grounds for divorce, both challenging coercive sex as “cruelty”.

·         Madhya Pradesh HC (May 2025): Rules forced “unnatural sex” within marriage amounts to cruelty under  section 498A IPC but maintained that rape charges be applied.

2.3  Supreme Courts pending review

In 2022, the Delhi Court issued a split verdict on criminalizing marital rape. The matter has escalated to the Supreme Court, which repeatedly emphasized it would decide based on legal principle even without the Centre’s stance. 

3.  The Core Arguments

4.     Safeguards & Legislative Options

If marital rape was criminalized, implementation would require robust safeguards.

·         Clear definitions of consent withdrawal, force, intimidation

·         Legal thresholds to reduce misuse- e.g. requiring verifiable evidence or minimum penalties

·         Fast-track adjudication, akin to rape , courts with sensitivity training for judge and police.

·         Civil law expansion with countries like UK(1991) and Singapore (2020) that eliminated exceptions.

·         Public awareness campaigns to shift cultural norms and reduce stigma and false claims.

5.     Social, political & cultural Dimensions

5.1 Cultural resistance

Traditional views expecting to be submissive- reinforce the exception as “private” or a spouse’s discretion.

5.2  Political reluctance

In December 2024, the center denied plans to remove the exception, citing BNS and DV Act as sufficient.

 AIDWA and other advocacy groups have condemned this stance, arguing women remain second-class citizens under such laws.

5.3 Judicial influence vs. Parliament

While courts (like Karnataka HC) have challenged the exception, the central government insists on legislative supremacy for the major legal change. The Supreme court’s stance suggests  legal reasoning will prevail, regardless of the center’s silence.

6.     Why this matters now ?

6.1              Supreme courts hearing

Pending petition, including Hrishikesh Sahoo, ask the apex court to address the constitutionality of exception 2, challenging gender discrimination.

       6.2        Constitutional norms

        Post-puttaswamy jurisprudence (In Justice K.S. Puttaswamy vs. Union of India (2017) recognized the Right to Privacy, including privacy in marital affairs, as a fundamental right envisaged under Article 21 of the Constitution of India ) reinforce individual autonomy-including the right to decline sex even within marriage .

6.3    Global pressure

India’s exception draws criticism from UN, CEDAW, and HRW for failing to match global standards yet rarified communities to eleminate gender-based violence.

           6.4      Convergence of legal frameworks

BNS retains the exception; DV Act needs clarity. A statutory criminal offense would harmonize these overlapping domestic protection.

          6.5        Societal Shifts

High-profile legal debates, increased media discussion, and rising women’s rights awarness have shifted public sentiment-acceptance without consent is increasingly seen as archaic.

7.     Navigating Concerns

Critics cite false allegation concerns yet empirical data show;

·          NCRB report  - 8.37% of rape FIRs were found to be  false in 2021.

·         However, conviction rates are 26.5% with 95% case pendency indicating under-enforcement rather than misuse.

These statistics suggest the greater risk is impunity, not fabricated claims.

8.     Conclusion

The marital rape exception is anachronistic and inconsistent with constitutional principles, international norms, and gender equality. The Supreme Court’s upcoming decision  expected in mid-2025  will determine whether India pursues transformative legal reform or maintains this colonial relic.

Regardless of the outcome, the debate itself is a societal inflection point. A criminal offence for marital rape would reaffirm consent as non-negotiable  even within marriage and could catalyze legal, institutional, and cultural transformation.

 Reference

[1]The Indian Penal Code, 1860 ( Act 45 of 1860) s.375,cl(2)

  Exception 2.— Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.