Marital rape has once again become a subject of public discussion, driven by constitutional challenges and shifting cultural narratives, especially among Gen Z. The recently launched web series Chiraiya has played a pivotal role in bringing this issue into the spotlight. By deeply portraying the psychological and physical trauma of non-consensual sexual acts within marriage, it compels legal scholars, lawmakers, lawyers, and the public to confront a fundamental question:
- The History: Lord Hale’s Doctrine to Colonial India
- The Present Legal Framework: A New Book Cover BNS
- The Global Perspective: How Foreign Laws Handle Marital Rape
- The Hesitation: Legal and Social Concerns
- A Balanced Review: The Impact of Criminalisation
- The Impact of Social Media: Bridging Law and Reality
“Can the institution of marriage legally override the constitutional principles of bodily autonomy and consent? And is marriage limited to sex even in the 21st century.”
The main purpose of this article is to analyse the legal framework governing marital rape in India and exploring its historical roots, examining global laws, and assessing the positive and negative impact of its criminalisation.
The History: Lord Hale’s Doctrine to Colonial India
In 1736, Chief Justice Lord Matthew Hale wrote in History of the Pleas of the Crown that:
“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself up in this kind unto her husband, which she cannot retract.”
This concept of implied and irrevocable consent was later adopted by Thomas Babington Macaulay while drafting the Indian Penal Code in 1860.
While English law has since overruled Hale’s archaic doctrine, the Indian legal system continues to carry this colonial legacy.
The Present Legal Framework: A New Book Cover BNS
Under Section 375 of the IPC, rape was defined as non-consensual sexual intercourse. However, an exception explicitly stated that sexual intercourse by a man with his own wife (provided she is over 18) would not amount to rape.
From 1 July 2024, India implemented a new criminal code the Bharatiya Nyaya Sanhita (BNS). Despite widespread advocacy and the recommendations of the Justice J.S. Verma Committee (2013) to abolish this exception, the legislature retained it.
Under the BNS, the definition of rape is found in Section 63, and the marital rape exception continues as Exception 2 to that section.
A paradox:
A heinous act is considered a crime in one context, but not in another. It is almost like saying: you cannot kill a person, but you can kill your slave.
The Global Perspective: How Foreign Laws Handle Marital Rape
The Harvard Human Rights Journal has aptly characterised marital rape in India as a “non-criminalised crime.” However, jurisprudence outside India has evolved significantly.
In the United Kingdom, the landmark 1991 judgment of R v R struck down the marital rape exception. The House of Lords declared that marriage is a partnership of equals, and the fiction of implied consent is no longer acceptable.
By 1993, the United States had criminalised marital rape across all 50 states, recognising it as a violation of fundamental human rights rather than a private marital issue.
Even within South Asia, countries with similar socio-cultural structures have progressed. Nepal criminalised marital rape in 2006, and Bhutan followed suit.
The Committee on the Elimination of Discrimination Against Women (CEDAW) has repeatedly urged India to criminalise marital rape, calling the exception a violation of international human rights standards.
Yet, the Indian state continues to hesitate. Why? Let us examine this legislative and judicial dilemma.
The Hesitation: Legal and Social Concerns
To understand this hesitation, it is crucial to examine the reasoning often presented by the State and certain judicial viewpoints.
Unlike the Western view of marriage as a civil contract, Indian society traditionally views marriage as a sacrament. The State fears that criminalising marital rape could lead to undue interference in the private sphere of the bedroom and potentially destabilise the family structure. Additionally, the availability of alternative remedies allows the State to argue that victims are not without protection. Legal safeguards exist under the Protection of Women from Domestic Violence Act, 2005 (PWDVA), and Section 85 of the BNS (formerly Section 498A IPC), which criminalises cruelty by a husband.
One of the most frequently cited concerns is the practical difficulty of proving lack of consent within a cohabiting marriage, where sexual relations are assumed to be regular and undocumented.
A Balanced Review: The Impact of Criminalisation
As the matter awaits a decisive ruling from the Supreme Court of India, it is important to evaluate both sides.
Arguments in Favour
Striking down the exception would align with:
- Article 14 (Right to Equality)
- Article 15 (Non-discrimination)
- Article 21 (Right to Life, Bodily Autonomy, and Dignity)
It reinforces that a woman’s fundamental rights do not disappear upon marriage.
Consent must be understood as an ongoing dynamic process, not a one-time surrender. Marriage is not a transaction, and certainly not ownership.
While domestic violence laws address cruelty, they fail to adequately punish violations of sexual autonomy. Criminalising marital rape ensures proportional punishment. Most importantly, recognising the crime empowers victims to speak out and helps shift societal thinking away from deeply entrenched patriarchy.
Arguments Against
Critics often cite the misuse of Section 498A (anti-dowry law), arguing that a marital rape law could be weaponised in divorce or custody disputes.
India’s judiciary is already burdened with backlog. A surge in such cases could lead to prolonged litigation and further strain the system.
Some argue that marriage is fundamentally based on consent, and when that consent breaks down, couples should opt for divorce rather than entering criminal disputes.
Others fear that criminalisation may create an environment of suspicion between spouses, fundamentally altering the trust-based institution of marriage.
The Impact of Social Media: Bridging Law and Reality
The deeply entrenched legal complexities of this issue are often difficult for a layperson to grasp. This is where media interventions like Chiraiya become vital. By translating dry legal statutes into emotional, human experiences, such narratives expose the real trauma caused by the marital rape exception. They highlight how the law leaves women trapped in abusive situations without formal recognition of their suffering. While media does not dictate jurisprudence, it plays a crucial role in building the societal awareness necessary for legal reform.
In a nutshell, the debate over marital rape in India is ultimately a tug-of-war between the preservation of traditional societal structures and the progressive march of constitutional morality.
While the State’s concerns regarding misuse of laws and the sanctity of marriage are not entirely unfounded, must be weighed against the ongoing violation of bodily autonomy faced by countless women.
As the Supreme Court prepares to deliberate on this issue, it stands at a defining moment. Indian jurisprudence must decide whether to continue relying on a 17th-century colonial fiction or to align itself with modern constitutional values.
