This blog addresses the urgent issue of marital rape in India, examining its normalisation within cultural and legal framework that mistakenly regard marriage as a basis for automatic, irrevocable consent. The lack of legal protection to marital rape is compounded by social stigma and traditional expectations, making it difficult for women to speak up without fear of backlash or societal judgement. The blog points out how these legal gaps fail to support victims and calls for a comprehensive reform of the system to safeguard them and provide them access to justice. It suggests that marital consent should be redefined, with practical steps for recognising signs of non-consent- like histories of abuse or evidence of coercion- and that the process of gathering evidence should be improved to assist survivors. Ultimately, it is emphasised that acknowledging marital rape as a crime is vital for India to meet global human rights standards and build a society where marriages are built on mutual respect and dignity.
In India, marital rape remains a serious but inadequately discussed problem. The prevailing cultural acceptance of forced sexual relations within marriage tends to frame such acts as “spousal rights”, normalising an extremely unacceptable practice. Discussing sexual violence by an intimate partner is a sensitive challenge worldwide, yet it remains a pervasive reality across all societies. In a comprehensive multi-country study on women’s health and domestic violence against women by WHO (2005), rates of sexual violence against women aged 15-39 by an intimate partner ranged dramatically from 6% to as high as 59% in various regions. Closer to home, India’s National Family Health Survey (2019-2020) revealed that roughly 30% of married women in India go through non-consensual or coercive sexual acts by their husbands, a figure that starkly contrasts with a legal system that does not classify non-consensual sex within the social institution of marriage as rape. Under Exception 2 to Section 375 of the IPC, marital rape is explicitly excluded from the legal definition, reinforcing the belief that marriage entails automatic and irrevocable sexual consent. The same definition has been retained in the Bharatiya Nyaya Sanhita (BNS) under Section 63, which ironically aims to modernise the criminal law framework.
While this provision clearly defines rape, it includes an exception that omits sexual acts forced within marriage from being deemed as rape, provided the wife is above 18 years old- a rule rooted in archaic beliefs about marital consent. Such a stance stands stark in contrast to the personal liberty, dignity, autonomy, and integrity guaranteed by Article 21 of the Indian Constitution. Despite the landmark Justice Verma Committee’s recommendations following the infamous Nirbhaya case, and widespread demands for reform, marital rape remains legally sanctioned within marriage. The Independent Thought v. Union of India case was a missed opportunity, wherein, while the Supreme Court raised the marital consent age to 18, it sidestepped the crucial issue of marital rape as a heinous crime against adult women.
India’s courts continue to deliver inconsistent rulings, underscoring the need for a well-thought unified stance. For instance, the Gujarat High Court has advocated criminalising marital rape, while the Delhi High Court recently deferred legislative authorities, claiming limitations imposed by separation of powers. This piecemeal approach left countless women without protection, forced to painfully endure abuse without the legal means to fight back and assert their human right of living a dignified life. It is high time for Indians laws to unequivocally recognise marital rape as a crime.
Cultural Complicity and Attitude towards Marital Rape
For a woman in India, reporting marital rape in itself entails navigating an immense social stigma that fundamentally blames her for the suffering. The very act of disclosing marital rape is seen as a personal and family disgrace, as it disrupts the traditional expectations of silence and compliance within marriage. In many cases, society- and even her own family- may react with disbelief or outright condemnation, viewing her not as a victim but as someone who has “brought it upon herself”.
In a societal context where arranged marriages predominate, especially in rural areas and traditional communities, marriage itself may have been entered into without full consent. Many women till date have little or no say in the choice of a spouse, yet are expected to submit to the institution and any abuse that may come with it. For some, marriage feels less like a partnership and more like a duty imposed by family, making the likelihood of coerced or violent sexual encounters alarmingly high. For instance, in cases where dowry demands persist, marital rape is even more common, with women enduring forced sex coupled with physical and psychological violence as part of the marriage “transaction”. Such a patriarchal system leaves women in an almost impossible situation to seek justice or escape abuse. Reporting marital rape would mean challenging a societal hierarchy where elders are often regarded as nearly infallible. A woman bold enough to speak out against her husband in such a structure knows the magnitude of her decision: she risks lifelong estrangement from her family, irreparably damaged relationships, and even loss of her social standing. Thus, reporting marital rape under such oppressive conditions underscores the unbearable suffering these women endure and the extraordinary bravery it takes to defy societal norms and seek justice. Such a report must be taken with the utmost seriousness, respecting her courage rather than shaming her for seeking justice. Addressing marital rape is not just about changing laws; it’s about empowering women to reclaim their voices in a society that has long silenced them.
Consequences of Marital Rape on a Woman’s Health and Well-Being
The effects of marital rape are undeniably far-reaching, severely undermining a woman’s physical, mental, and emotional health. Survivors of marital rape often suffer from significant physical injuries, heightened risks of sexually transmitted diseases, and severe reproductive health complications, worsened by their lack of control over safe sex practices within marriage. Studies indicate that nearly 22% of women who endure prolonged marital abuse suffer from reproductive health issues, including miscarriage, infections, and in severe cases, uterine prolapse. The mental health consequences of marital rape are equally alarming, approximately 98% of women who survive such abuse report psychological distress, with symptoms ranging from chronic anxiety and depression to sever suicide ideation. Survivors frequently report experiencing forces anal or oral sex, often accompanied by physical violence, resulting in serious medical issues like pelvic inflammatory disease (PID). This persistent violation of a woman’s bodily autonomy calls for urgent legal and societal intervention.
Roadblocks to India’s Lagging Position on Marital Rape
Globally, over 100 countries, including the United States, the United kingdom, and South Africa, have either recognised or criminalised marital rape, rejecting the fallacy of implied marital consent. As a signatory to the convention of the Elimination of All Forms of Discrimination against Women (CEWAD), India has pledged to work towards eliminating discrimination against women in all its forms. While the Convention does not explicitly require addressing violence against women, marital rape reflects systemic discrimination by reinforcing unequal power dynamics and denying women autonomy within marriage. Criminalizing marital rape would not only provide victims with a pathway to justice but also challenge deeply rooted cultural and legal norms that perpetuate gender inequality.
Opponents of criminalising marital rape argue that such laws would destabilise marriages, be exploited against men, or somehow erode family values. These arguments trivialize rape as a marital issue rather than acknowledging it as a severe violation of human dignity, integrity, and autonomy. A common concern raised is the potential misuse of such laws by women to falsely implicate men. However, this argument rests on a flawed premise, as misuse is not unique to laws addressing marital rape; it exists across all legal frameworks. For instance, the Domestic Violence Act, 2005, and Section 498A of the IPC (Section 84 of the BNS) are also sometimes misused by filing false complaints to harass husbands and their families. Yet, the possibility of misuse has never been a valid reason to repeal or avoid enacting such laws, as they provide critical safeguards for genuine victims. The solution lies in strengthening investigative and judicial processes to prevent abuse of the law, not in denying protection to those who truly need it.
Sceptics also cite potential difficulties in proving marital rape as a ground to avoid criminalisation, completely being ignorant of the fact that challenges in prosecution do not and must not excuse the absence of legal recognition. Legal reforms do not endanger marriage; rather, it promotes a foundation of mutual respect and dignity. Continuing to ignore marital rape under the guise of “protecting” marriage only serves to entrap survivors in abusive relationships. Legal protections are, after all, not privileges but rights.
Essential Actions for Change: Policy Recommendations
One of the major challenges in addressing marital rape through criminalisation lies in the question: how can it be proven? To tackle this, the author suggests two major practical recommendations:
1. To begin, it is essential to redefine consent within marriages, making it explicit that marital consent in not automatic or perpetual but rather requires active, ongoing agreement from both partners. To support this, an explanatory note could be introduced within the Bharatiya Nagarik Suraksha Sanhita (BNSS) detailing the various illustrations that might indicate an absence of consent in marriage. These could include:
- Documented history of domestic violence, where prior physical, emotional, or verbal abuse suggest that any sexual act might have been forced;
- Explicit verbal resistance, where one spouse objects or shows clear discomfort before or during the act; which should be treated as non-consensual in an ideal situation;
- Instances where threats or coercion are used, such as threats of harm or financial deprivation, including dowry demands, which undermine the possibility of genuine consent;
- Even non-verbal signs, though insufficient on their own, may also signal non-consent if one partner exhibits ongoing distress or consistently avoids intimacy, suggesting a psychological withdrawal of consent.
In addition, post-incident actions, such as seeking mental counselling or showing signs of anxiety or distress could further substantiate that the act was non-consensual.
2. As the next step, it is suggested that a new provision be added under Section 63 of the BNS to guide evidence collection specifically in cases of marital rape. This could include victim statements and documented communication, where refusals or objections are made explicit before the act, or written exchanges such as texts, where one partner voices unwillingness. Medical and psychological assessments could also serve as crucial supportive evidence, while testimonies from counsellors or family members, with whom the survivor may have shared incidents of marital rape, could provide additional context and authenticity to support claims of non-consent.
In addition to these, the law should extend existing privacy protections to cases of marital rape by requiring that these cases be held in-camera to ensure the survivors’ privacy. In line with this, the publication of any information that could identify the survivor should be strictly prohibited, ensuring a more secure and supportive environment for victims navigating the justice system.
Conclusion
In conclusion, it is important to emphasise that the trauma inflicted by marital rape- especially when its repeated- is beyond words. Marital rape is not merely a marital disagreement; it is an act of violence, a violation of bodily dignity, and a degradation of the survivor’s life, dignity, and integrity. For a woman to speak out against such a crime is to demand justice for an inhuman offence committed by one individual against another, regardless of whatever relationship or bond they may share. Marital rape is, unequivocally, rape.
If our legal system can recognise offenses such as those under Section 69 of the BNS, which penalises men who mislead women into sexual relationships by making false promises, it is certainly equipped to address and criminalise cases of marital rape. It is high time that India acknowledges and addresses this pressing issue, providing these silent survivors the justice they rightfully deserve.
This blog is written by Mahi Agrawal is a second-year student at Hidayatullah National Law University, Raipur.
Linkedin: <https://www.linkedin.com/in/mahi-agrawal-b269b2233/>