Criminalisation of Marital Rape in India: Where the Law Actually Stands

Marital rape is one of those topics where the legal position in India surprises a lot of people once they actually look it up. Non-consensual sex within marriage isn’t treated as rape under Indian criminal law, provided the wife is above 18. That single exception has been the subject of court battles for years now, and the question of whether marital rape should be a criminal offence still hasn’t been resolved.

What the Law Currently Says

Section 375 of the IPC defined rape, but Exception 2 carved out marital rape from that definition entirely, as long as the wife was over the age of consent. The Bharatiya Nyaya Sanhita, 2023, which replaced the IPC, kept this marital rape exception intact under Section 63. So despite an entire rewrite of India’s criminal code, the legal position on marital rape hasn’t actually changed.

There’s one narrow carve-out worth knowing. Under Section 376B of the IPC, a husband can be prosecuted for having intercourse with his wife without her consent during a period of judicial separation. Outside that specific situation, though, the exception holds. In practice, this also means cruelty within marriage, including forced sexual relations, is more often raised as a ground while filing a divorce petition than as a criminal complaint, since the criminal route simply isn’t available for adult wives.

The one place courts have already intervened is age. In Independent Thought v. Union of India (2017), the Supreme Court read down the exception so that sex with a wife below 18 counts as rape regardless of marriage. That protected minor wives, but it left adult married women exactly where they were before.

The Delhi High Court’s Split Verdict

In 2022, a two-judge bench of the Delhi High Court heard a batch of petitions challenging the marital rape exception on constitutional grounds, mainly Articles 14 and 21. The judges disagreed with each other. Justice Rajiv Shakdher held that the exception was unconstitutional and violated a married woman’s right to equality and bodily autonomy. Justice C. Hari Shankar took the opposite view, holding that the exception did not violate the Constitution and that any change to this law was best left to Parliament.

Because the two judges couldn’t agree, the case didn’t produce a binding ruling either way. It simply moved up to the Supreme Court, which is where things currently stand.

Arguments For and Against Criminalisation

This is genuinely one of the more contested legal debates in India, and both sides have laid out fairly specific arguments.

Those pushing for criminalisation argue that marriage cannot be treated as blanket, permanent consent. Consent, they say, has to be ongoing and can be withdrawn, and the current exception effectively puts married women outside the protection that unmarried women get under rape law. They also point to countries like the UK, which criminalised marital rape decades ago through cases like R v. R, as proof that removing this exception doesn’t collapse a legal system.

Those against criminalisation, including the current central government, have raised a different set of concerns. In its affidavit before the Supreme Court, the government argued that criminalising marital rape would be excessively harsh and could destabilise the institution of marriage. There’s also a repeated concern about misuse, the fear that such a provision could be used to file false cases during marital disputes. Critics of this argument point out that the possibility of misuse exists for nearly every criminal law, and courts have generally held that this alone isn’t a reason to avoid criminalising a genuine wrong.

Where the Case Stands Today

As of 2026, the matter is still pending before the Supreme Court, in a case now referred to as Hrishikesh Sahoo v. State of Karnataka, along with the batch of petitions carried over from the Delhi High Court split verdict. Hearings on the constitutional validity of the marital rape exception have been repeatedly delayed, and no final judgment has been delivered yet.

Until the Supreme Court rules, or Parliament decides to act on its own, the exception under Section 63 of the BNS remains part of the law exactly as it stands today.

Conclusion

The debate over marital rape in India sits at the intersection of constitutional rights, marriage as a legal institution, and genuine concerns about misuse of criminal law. The Delhi High Court’s split verdict shows just how divided legal opinion is on this question, even among judges reading the same Constitution. Whether marital rape gets criminalised in India will likely depend on how the Supreme Court balances these competing arguments, and until that happens, the current exception stays exactly where it is.

Written By – Khushi Mittal