The Legal Blind Spot: Why Marital Rape Remains Unpunished in India
Image Source: The Hindu
Chhattisgarh High Court’s ruling in February 2025, finding a man guilty of raping and coercing his wife into having unnatural intercourse that ultimately resulted in her death, caused national indignation. He was given a somewhat low but somewhat effective punishment of 10 years in jail by the trial court for the incident that took place in 2017. But to the disappointment of the public, the High Court gave the ruling that marital rape is not recognized under Indian law and thus is not a criminal offence.
It brought to light the cultural blind spot and the long-standing justice system flaw. Feminist organizations, legal experts, and certain opposition leaders all vigorously protested this decision both offline and online. This example serves as evidence of the innumerable unreported and unacknowledged ones that exist across the nation. A question which was on everyone’s mind was whether marital rape can be classified as “real” rape? The ugly truth is that marital rape does not get the attention it merits despite being such a terrible crime.
An important safety precaution is the Protection of Women from Domestic Violence Act, 2005 (DVA), which offers legal protection against a range of domestic abuses, such as financial, emotional, sexual, and physical aggression. It ensures women’s right to live in a shared household and gives access to additional legal remedies.
Other significant laws that govern marriage and divorce include the Hindu Marriage Act of 1955 and the Special Marriage Act of 1954, while the Maternity Benefit (Amendment) Act of 2017 and the Sexual Harassment of Women at Workplace Act allow for the inclusion of male adult abusers and other family members as respondents in domestic violence cases under the DVA.
Additional facets of women’s rights are addressed under the Prevention, Prohibition, and Redressal Act of 2013. Notwithstanding the efforts of the Prohibition of Child Marriage Act of 2006 and the Dowry Prohibition Act of 1961 to avoid harmful practices, the startling number of 6,450 dowry fatalities in 2022—Uttar Pradesh leading the way—highlights the ongoing difficulties.
Exception 2 is a problematic provision in Section 375 of the Indian Penal Code (IPC), which defines rape, even though there are several laws. According to this exception, a man and his wife engaging in sexual activity together, if the wife is older than 15, does not amount to rape. This reflects the legal and societal perspective that views marriage as a general consent to engage in sexual activity.
The arguments against the criminalisation of marital rape are rooted in a patriarchal and traditional mindset. The first argument is that “marriage is sacred, and criminalization of such an act would lead to the destabilization of society.” This perspective puts greater emphasis on the institution of marriage over individual autonomy. It implies the sanctity of marriage is somehow threatened by holding a husband accountable for sexual assault within that union.
The second argument states that implementing such laws can potentially lead to a rise in fraudulent cases where the woman might take revenge by misusing the law and can thus ruin the life and reputation of her husband. This is another problematic argument, as it means that protecting men from false accusations is more critical than protecting women from actual violence.
Thirdly, the difficulty of “proving it medically” is used as an excuse to overlook the crime and disregard its heinous and harmful nature. The absence of physical injuries does not imply the absence of abuse, even though medical proof is required. In many instances, the abuse may not leave physical scars but instead have serious emotional and mental effects.
When rigorously examined, these claims are unfounded and misinterpret the fundamental definition of consent.
The notion that “in a marriage, sex is implied so consent can be assumed” is a dangerous one, as it overlooks the right of bodily autonomy of women. The belief that a separate law is not required, as domestic violence law exists, is not helpful, as under this law, marital rape is not included or explicitly stated. This poses a challenge for victims to get specific legal recourse and recognition that they deserve. The current so-called punishment for this offence is protection order, judicial separation, or monetary compensation, with no scope for criminal penalties.
The government’s stance on this issue has been unclear. Although they accept that a husband has no right to breach his wife’s permission, they feel that labeling this behavior as “rape” is excessively harsh. This places more emphasis on the purported seriousness of the designation than the actual offense. A minister had also stated that India is unable to apply the Western definition of marital rape due to poverty, religious convictions, and illiteracy. This statement is extremely troublesome since it shows that some societal groups do not understand the fundamentals of consent and physical autonomy. It also suggests that socioeconomic reasons are preventing justice.
The grim reality of abusive marriages is that women are forced, shamed, and beaten up to perform sex. The abuse has drastic impacts on their mental health as well as their sense of self. These women usually suffer from PTSD, depression, suicidal tendencies, and emotional breakdowns. It is an inhumane treatment, a profound lack of respect, and a series of humiliating actions that strip women of their dignity. There is also the stigma regarding a “divorced” woman, as often, they are held responsible for the failure of their marriage. This social stigma implies that an alarming 90% of women who face sexual violence in their marriage never report it. This is a testament to the shame, guilt, fear, and stigma faced by them.
The global landscape is quite the opposite to that of India, as in more than 100 countries, marital rape is a criminal offence, including Pakistan, which recognised this as a crime under domestic violence in 2006.
The arguments against criminalising this offence are deeply embedded with a patriarchal mindset, as in the case of Former Education Minister Smriti Irani, who stated that, “to condemn every marriage as violent and every man a rapist is not advisable.” This remark ignores the horrible nature of sexual assault as well as the lived realities of millions of women who have experienced it in their marriages.
The most prevalent argument, “How can it be rape if you are married?” exposes the unsettling notion that a woman’s freedom to consent is somehow diminished by marriage.
I believe that India’s ongoing opposition to making marital rape a crime is both a moral and a legal shortcoming. It is a violation of the core values of liberty, equality, and human dignity that are protected by our Constitution. The exclusion “deprives approximately one-half the population of equal protection of the laws,” which is a violation of Article 14, which guarantees equal treatment before the law. It violates freedom of expression under Article 19(1)(a) since it denies a married woman the ability to “claim her sexual agency and autonomy.” Furthermore, as legal academics have correctly noted, Exception 2 seriously violates Article 21—the right to life and liberty—by depriving married women of the autonomy and sexual agency to decide when to have sex.
The goal of the effort to make marital rape a crime is to recognize that all people, regardless of marital status, have inherent human rights. An estimated 26 million Indian women, or 1 in 25, are victims of marital rape. This is a terrible reality that needs to be recognized.
There is hope because of the Supreme Court’s ongoing discussions. India needs to break free from the constraints of an outdated law and conform to global human rights norms. The time has come to declare unequivocally that consent is always essential. A woman’s basic right to own her body cannot be taken away by any relationship, not even marriage.
About Author: Rituja Majumdar is a second-year B.A. Media and Journalism student at Christ (Deemed to be) University, Bengaluru. This article was developed as part of her Socio-Political Ideology coursework under the guidance of Dr. Krishnapriya T.K., Assistant Professor in the Department of Media Studies. It reflects her efforts to engage directly with community issues and voices while applying journalistic principles to real-world contexts.
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