Onus on legislature to make Marital Rape punishable: SC

Why in News? 

Recently, the Supreme Court questioned whether a husband could face rape prosecution while the statutory marital rape exception remains operative. Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita (BNS) states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”.

The SC stated that it recognises the individual autonomy of married women, but the Bharatiya Nyaya Sanhita exempts marital rape from being considered a crime. The onus is on the legislature to make Marital Rape punishable. 

What is the existing legal position?

Marital rape means sexual intercourse or sexual acts imposed on a spouse without consent. Indian law recognises sexual abuse within marriage, but retains a significant exception from prosecution for rape.

• Adult wives: Exception 2 to Section 63, Bharatiya Nyaya Sanhita (BNS), corresponding to IPC Section 375, excludes sexual intercourse or sexual acts by a man with his wife, aged 18 or above, from rape.
• Separated wives: Section 67 BNS, corresponding to IPC Section 376B, separately criminalises non-consensual intercourse during separation, whether under a judicial decree or otherwise. Punishment is two to seven years’ imprisonment and a fine.
• Other criminal provisions: Sections 85-86 BNS address cruelty by husbands or their relatives; provisions concerning hurt and intimidation may apply when their ingredients are established. These do not provide equivalent recognition of rape.
• Domestic violence remedies: The Protection of Women from Domestic Violence Act, 2005 includes sexual abuse and provides protection, residence, monetary and compensation remedies. These remedies do not themselves abolish the rape exception. 

Why does the issue demand attention?

• Substantial domestic violence burden: NFHS-5 (2019-21) recorded that 29.3% of ever-married women aged 18-49 had experienced spousal violence, compared with 31.2% in NFHS-4. 
• Sexual violence frequently occurs within intimate relationships: Among ever-married women aged 18-49 who reported ever experiencing sexual violence, NFHS-5 found 82% identified their current husband and 14% a former husband as perpetrators. These percentages concern survivors reporting sexual violence, not all married women. 
• Economic and social barriers impede reporting: A 2025 analysis of NFHS-5 identified associations between sexual violence and factors including economic dependence, lower education and limited decision-making autonomy. Such associations support interventions beyond criminal law alone. 

Arguments for removing the Marital Rape Exception: 

(i) Equal protection should survive marriage: 

• The constitutional argument under Articles 14 and 15 is that marital status should not determine whether a woman receives protection against non-consensual sexual penetration. 
• The separated-wife provision (BNS) further raises the question: why should living arrangements determine the degree of protection for bodily autonomy?

(ii) Marriage cannot extinguish dignity and sexual autonomy: 

• Article 21 protects personal liberty and dignity. In Joseph Shine v. Union of India (2018), the Supreme Court struck down adultery criminalisation and rejected the conception of a wife as subordinate to her husband. 
• This reasoning supports the argument that marriage cannot create permanent sexual entitlement, although that judgment did not itself invalidate the marital rape exception. 

(iii) Consent must relate to the particular sexual act: 

• Section 63 BNS defines consent as voluntary agreement to a specific sexual act by words, gestures or any form of verbal or non-verbal communication. Absence of physical resistance alone does not establish consent. The reform argument is that this principle should apply consistently within marriage. 

(iv) Sexual violence causes serious health consequences regardless of the relationship: 

• WHO associates intimate-partner and sexual violence with injuries, unintended pregnancies, sexually transmitted infections, depression and post-traumatic stress. These consequences establish a public-health rationale for prevention, accountability and accessible treatment.

(v) Existing reproductive-rights jurisprudence already recognises marital sexual violence: 

• In X v. Principal Secretary, Health and Family Welfare Department (2022), the Supreme Court included marital rape within “rape” for purposes of the Medical Termination of Pregnancy (MTP) framework. 
• It expressly clarified that this did not strike down the IPC exception. The decision nevertheless demonstrates that forced sex within marriage can have legally recognised consequences for reproductive autonomy. 

(vi) Expert recommendations and comparative experience support reform: 

• The Justice J.S. Verma Committee (2013) recommended removing the IPC (BNS) exception and rejected marriage as irrevocable consent. 

Arguments against criminalising Marital Rape:

• Separation of Powers: Removing the marital exception would substantially alter criminal law and create new criminal liability. Critics, including Justice C. Hari Shankar in the 2022 Delhi High Court split verdict, argue that Parliament should make such a change with clear definitions, punishments, and safeguards.
• Need for proportionate punishment: The ordinary rape provision under the BNS carries a minimum 10-year sentence. The Centre has argued that mechanically applying the same framework within marriage may be disproportionate and that a differentiated offence and sentencing framework may be more appropriate.
• Evidentiary challenges: In marital relationships, the fact of intercourse may be undisputed, while the key question is whether consent was absent on a particular occasion. DNA evidence can establish sexual contact but not the absence of consent. Hence, clear evidentiary and procedural safeguards are necessary.
• Existing legal remedies: Cruelty provisions, the Domestic Violence Act and the offence relating to sexual intercourse by a husband with a wife living separately already provide certain protections. Critics favour strengthening and integrating these mechanisms rather than simply extending the conventional rape law to marriage.
• Risk of socio-economic consequences: Arrest or imprisonment of the earning spouse may affect maintenance, housing and childcare, particularly where women are economically dependent. Criminalisation should therefore be accompanied by financial assistance, shelter and child-support mechanisms.
• Institutional capacity: Without gender-sensitive policing, trained investigators, confidential procedures, survivor protection and speedy trials, criminalisation may produce limited practical protection and expose survivors to further trauma.

Way Forward: 

• Remove the adult-wife exception through clear legal reform, with consent as the governing principle and explicit treatment of temporal application.
• Review the separate treatment of separated wives, ensuring that differences in protection have a constitutionally defensible basis.
• Combine accountability with immediate support: accessible protection orders, safe accommodation, financial relief, legal assistance and reproductive and mental-health care.
• Improve investigation and adjudication: train police, prosecutors, doctors and judges to recognise coercion within intimate relationships while protecting fair-trial rights.
• Strengthen women’s economic agency: employment opportunities, access to assets and social protection can reduce dependence that obstructs reporting or exit.
• Improve measurement: distinguish spousal sexual violence, physical violence, help-seeking and case outcomes; avoid treating registered crimes as a complete measure of prevalence.
• Address wider sexual-offence gaps while preserving the decriminalisation of consensual adult intimacy.

Marriage should preserve each partner’s dignity and freedom to consent. A credible reform must translate that principle into clear criminal law, fair procedure and practical support for survivors.

Mains practice question:

Q. “Marriage does not extinguish individual autonomy, but reform of penal law must also respect constitutional legality.” Examine in the context of India’s marital rape exception.

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