Supreme Court’s Stance on Marital Rape: Is India Moving Toward Reform?
Introduction
India stands at a critical legal crossroads. The issue of marital rape—defined as non-consensual sexual intercourse by a husband with his wife—has long existed in a legal grey area. Under the Indian Penal Code (IPC) and its successor, the Bharatiya Nyaya Sanhita (BNS), 2023, spouses are exempt from prosecution for rape if the wife is not a minor. As of mid-2025, a cluster of public interest litigations is advancing before the Supreme Court of India, challenging this exemption. The outcome could redefine marital consent and propel India toward key legal reforms.
Legal and Historical Backdrop
The IPC’s Section 375, Exception 2, exempted marital rape when the wife is an adult. With the enactment of the BNS (effective 1 July 2024), this immunity was preserved under Section 63, albeit with the age threshold updated to 18 years .
This exception derives from archaic jurisprudence—particularly a colonial-era principle that marriage implicitly covers consensual relations. Although progressive reforms have criminalized sexual violence and upgraded protections, this marital exemption remained intact, viewed by human rights advocates as an egregious breach of women’s bodily autonomy.
High Court Verdicts and Their Contradictions
India’s High Courts have delivered conflicting rulings, exposing the judiciary’s divided stance:
• The Karnataka High Court (2022) struck a rare progressive tone, affirming that “rape is rape, be it performed by a husband”, rejecting the blanket exception .
• The Madhya Pradesh High Court (2024), however, upheld that forced “unnatural sex” by a husband does not amount to rape, citing marital immunity  .
• The Delhi High Court (2022) issued a split verdict: Justice Rajiv Shakdher deemed the exception unconstitutional, while Justice C. Hari Shankar deferred reform to Parliament .
These unsynchronized judgments laid the groundwork for a unified examination before the Supreme Court.
Supreme Court Takes Up the Challenge
In October 2024, a three-judge Bench (Chief Justice D.Y. Chandrachud, Justices J.B. Pardiwala, and Manoj Misra) commenced hearings on petitions contesting the marital rape exception under both the IPC and BNS  .
Petitioners’ Arguments:
• Advocates like Karuna Nundy and Colin Gonsalves asserted that disregarding consent within marriage violates fundamental rights under Articles 14, 15, 19, and 21 of the Constitution  .
• The petitions characterise the exception as a product of patriarchy that undermines personal dignity and places married women at a disadvantage not shared by unmarried women.
• Citing international precedents—especially the Nepal Supreme Court ruling—petitioners argued the criminalization of marital rape may in fact reinforce the institution of marriage  .
Chief Justice Pardiwala aptly asked: “If wrongful confinement, criminal intimidation, and assault are offences, why is the inevitable forced intercourse permitted?” .
The Government’s Stance
The Union Government opposes judicial intervention, emphasising that this is a societal concern best addressed by lawmakers:
• In its October 2024 affidavit, the Centre maintained that criminalizing marital rape risks destabilizing marriages and urged deference to legislative intent, pointing out that Parliament consciously preserved the exemption during the 2013 amendments and while enacting the BNS  .
• The affidavit further highlighted that other legal provisions—such as laws against sexual harassment, domestic violence, and cruelty—already offer some measure of protection; resting the matter in broader social reform is preferable to immediate criminal law overhaul  .
• The Centre urged the Court to consider the socio-legal implications across states before modifying such a sensitive provision .
Constitutional and Legal Tensions
The Supreme Court is wrestling with several critical questions:
1. Does the exception undercut equal protection by discriminating against married women?
2. Does it infringe the right to bodily autonomy and dignity guaranteed under the Constitution?
3. Does removing the exception create a new offence—or simply remove a dubious privilege?
4. Is it the Court’s duty to read down or strike out statutory exceptions, or should such changes come from Parliament?
These debates raise profound questions about the legal recognition of consent and the interplay between individual rights and social norms.
Wider Legal Context and Precedents
In its 2022 MTP ruling, the Supreme Court interpreted “rape” to include marital rape for purposes of abortion, asserting that marriage cannot extinguish consent—though this recognition applies only to reproductive rights and not criminal law .
Further, the Justice J.S. Verma Committee (2013)—which catalysed major criminal law overhauls—had recommended scrapping the marital rape exception, but Parliament declined, illustrating the legislative inertia on this issue .
Comparative International Insights
India remains among a shrinking number of countries holding onto this exemption:
• The U.K. criminalized marital rape in the 1990s.
• Nepal, South Africa, and the United States have recognized marital rape as a prosecutable offence.
• United Nations treaties like CEDAW have repeatedly urged India to align with global human rights norms.
Legal scholars argue that criminalizing marital rape does not erode marriage but affirms the importance of voluntary consent in intimate relationships.
Social Realities and Implementation Challenges
Should the Court deliver a reformist verdict, translating legal change into real-world impact will demand:
• Sensitization of law enforcement and judicial officers to avoid bias when handling cases.
• Robust support services—helplines, shelters, trauma counseling—for victims.
• Clear legal guidelines for proving non-consent, corroborating evidence, and avoiding misuse without undermining victims’ rights.
Without systemic support, even progressive rulings risk being symbolic rather than effective.
Is India Moving Toward Reform?
The very fact that the Supreme Court is hearing the challenge signals a shift from passive inertia toward active consideration. The petitioners’ framing of the case as “people versus patriarchy” underscores growing societal demand for gender justice.
Yet, the government’s insistence on preserving the exemption and deferring to Parliament highlights the ongoing tension between legal abstinence and social reform. The verdict—expected in late 2025—could either pave the way for change or reinforce the status quo.
Conclusion
As of mid-2025, marital rape remains exempted under Indian criminal law. But the Supreme Court’s deliberations represent a landmark moment. A decision affirming criminal liability for marital rape would not dismantle marriage—it would dignify it, placing voluntary consent at its core.
India’s progress depends on this verdict. Will the Court uphold the constitutional promise of equality and personal liberty? Or will legal reform remain stalled behind societal conservatism? The answer will shape the legal and moral architecture of marital relations for generations to come.
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