This is by design. In October last year, the ministry of home affairs told the Supreme Court that husbands do not have a fundamental right to “violate the consent of their wives”—a fancy way of saying rape—but if Parliament removed the marital rape exception, then the institution of marriage will be destroyed.
Why does the government have any interest in preserving an abusive marriage; one where the wife is the property of her husband and her consent is irrelevant? In 1736 Sir Matthew Hale declared: “The husband cannot be guilty of rape committed by himself upon his lawful wife.” We are now in 2025, one of 32 countries that have yet to criminalise marital rape.
I would argue that rape in marriage is worse than rape by a stranger, since it happens repeatedly and since it denies the victim even the dignity of being able to file a complaint. The data is grim: The National Family Health Survey-5 finds that when women are subjected to sexual violence, the perpetrators in 82% of the cases are their husbands; 99.1% of sexual assault by husbands are never reported, analysis by Mint found.
Aside from the immorality of forcing wives to live with their rapists, there is the issue of judicial confusion. In 2022, two judges of the Delhi high court sat down to adjudicate. Justice Rajiv Shakdher said non-consensual sex in marriage is the antithesis of what matrimony stands for in modern times—a relationship between equals. A wife has the right to withdraw consent at any time, he said. While justice C. Hari Shankar agreed there could be no compromise on the sexual autonomy of women, he added cryptically: “Just as every incident of taking of the life by one, of another, is not murder, every incident of non-consensual sex of a man with a woman is not rape.”
The case was then bumped up to the Supreme Court, where it is waiting to be heard.
Until then women must continue to endure. Last year a Madhya Pradesh judge quashed a first information report against a husband saying there was nothing unnatural about having non-consensual anal sex with his wife. In August 2021, a man who raped his wife with such violence that she was left paralysed was able to get anticipatory bail from Maharashtra.
Does the government owe nothing to its women citizens who’ve been promised equality by our Constitution?
Fortunately, some courts are catching up. In 2022, the Karnataka high court saw the exception clause as an “inequality that destroys the soul of the Constitution.” Holding a husband guilty of raping his wife, the judge noted that a “brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed rape,” and allowed the framing of charges. The husband has filed an appeal, now pending in the Supreme Court.
“There is not a single case in India of successful prosecution of a man by his wife in India for rape,” says senior advocate Indira Jaising who appeared for the wife in the 2022 Karnataka high court matter. Adds advocate Rohin Bhatt who also appeared for the wife: “The allegations were so ghastly that the high court held that even the exception could not provide him an immunity from prosecution.”
Much of the chatter justifying why the exception should remain is sexist: Women will misuse it etc. Others say that women have other remedies in law, against domestic violence, for instance, and cruelty. But legal protection from another crime does not give a raped wife access to State support, compensation, medical assistance and fast-track courts.
In the not-so-distant past, India’s Supreme Court has delivered a series of judgments breathtaking in standing up for privacy, decriminalizing consensual same-sex relations as well as adultery, and upholding the rights of trans people. It must hear the marital rape exception without further delay. Too many lives depend on it.
This article was originally published on 14 Feb 2025 by the Hindustan Times