November 21, 2023
symbolizing the legal focus


Marriage is often considered to be a sacred and intimate bond between two individuals, based on love, trust, and mutual respect. However, in many parts of the world, including India, the concept of marital rape is still a taboo subject that is often overlooked and dismissed. The present article aims to present before the readers what is marital rape, why it should be criminalized, what the arguments are presented for its non-criminalization and also the role of the Supreme Court in recognizing marital rape as an offence.

What is marital rape?

Marital rape refers to the act of sexual intercourse without the consent of one’s spouse.

Whether marital rape is an offence in India?

In India, marital rape was not recognized as a criminal offense until recently. The Indian Penal Code (IPC) did not consider forced sexual intercourse within marriage as a crime, as it was believed that marriage implied consent to sexual relations. This out-dated and discriminatory belief has been challenged in recent years, leading to significant legal reforms and changes in public perception. However, there is only a partial change in the law.

A rape within marriage would amount to rape only when the age of the victim is below 18 years and in that circumstance only the husband may be prosecuted under Section 376 of the Indian Penal Code, 1860.  Otherwise, if the age of the victim is above 18 years them it would not amount to rape and the victim may only file a case under the Domestic Violence Act, 2005.

Therefore, it may be stated that marital rape is still not recognized as rape in India.

The important decisions of the Supreme Court on marital rape

The Supreme Court has been very instrumental in upholding and protecting the rights of women in the marriage. Following are some of the important decisions.

  • In Bodhisathwa Gautam v. Shubhra Chakraborthy (1996) Supreme Court held that rape is a crime against basic human rights and is violative of victim’s most cherished, fundamental right. A married woman too has a right to live in human dignity, right to privacy and rights over her own body. Marriage in no way can take away these rights.
  • In State of Maharashtra v. Madhukar Narayan Mardikar (1991) the Supreme Court recognized that forced sexual intercourse by a husband with his wife against her will would be a violation of her fundamental right to life and personal liberty under Article 21 of the Indian Constitution. However, the court did not explicitly criminalize marital rape and left it to the legislature to take appropriate action.
  • In 2013 Justice Verma Committee Report following the infamous Nirbhaya gang-rape case in 2012, the Justice Verma Committee was formed to suggest amendments to criminal laws relating to sexual offenses. The committee recommended that marital rape should be recognized as an offense, irrespective of the age of the wife.
  • In Independent Thought v. Union of India (2017): The Supreme Court, while hearing a petition seeking to declare the exception to marital rape under the Indian Penal Code (IPC) as unconstitutional, observed that sexual intercourse with a minor wife (below 18 years) would be considered rape, even if she is married. This decision aimed to protect the rights of child brides.

Why marital rape should be criminalized?

There are following arguments which are presented to criminalize the marital rape.

  • Non- criminalization of marital rape perpetuates gender-based violence and discrimination against women.
  • Marriage should not be seen as an irrevocable consent to sexual relations
  • Women have the right to bodily autonomy and sexual freedom within their marriages.

Arguments against criminalization of marital rape

The following arguments are presented against the criminalization of marital rape.

  • Criminalizing marital rape goes against traditional and cultural beliefs that view marriage as a sacred institution and the husband as the head of the household.
  • It is a private matter that should be resolved within the confines of the family.
  • It can be difficult to prove marital rape as it often occurs in private, without witnesses or physical evidence. This could lead to false accusations and wrongful convictions.
  • Criminalizing would have a negative impact on marital relationships, leading to distrust and animosity between spouses.
  • Criminalizing marital rape could be misused by individuals seeking to settle scores or gain an advantage in divorce or custody proceedings.
  • Some religious groups may object to criminalizing marital rape, citing religious texts and beliefs that emphasize the authority of husbands over their wives.
  • Criminalizing marital rape could disrupt family dynamics and lead to the breakdown of families, particularly in a society where divorce is stigmatized.

These arguments don’t hold water as are outdated, patriarchal and misogynist. The Supreme Court itself in State of Punjab v. Gurmit Singh (1996) has stated that accused can be convicted solely on the basis of rape victim if the testimony inspires confidence.


The issue of marital rape in India is a critical concern that requires urgent attention and action. Legal reforms are necessary to criminalize marital rape and provide protection to married women from sexual violence. It is also essential to address the social and cultural attitudes towards women’s rights and bodily autonomy within marriage. Only through comprehensive legislative changes and societal shifts can we ensure that all individuals, regardless of their marital status, are protected from sexual violence and abuse.

Significance of the Topic

The issue of the criminalization of marital rape is an important socio-legal issue that India is facing. It involves the issues of bodily integrity, personal freedom, and the dignity of a married woman. Therefore, it becomes an important topic for judiciary aspirants, according to judiciary coaching. Judiciary coaching suggests that this topic should be prepared with the essay perspective for the judiciary exams.

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