Sravasti Dasgupta 
New Delhi: For 18-year-old Kiran*, getting married to a man of her family’s choice, meant fulfilling an expectation that women are meant to in Indian society. That her mother had chosen him for her was enough; she herself had never met him. Having dropped out of school in class nine, with two siblings and her mother as the sole breadwinner, Kiran knew her responsibilities as a daughter and was ready to embrace her duties as a wife and daughter-in-law. The act of sex and the concept of consent were alien to her.
It was on the very night of her wedding that everything changed.
“The night of my wedding when I went to my in-laws’ house, I found that my husband had been drinking. Everything that happened that night was against my will and my consent. My husband forced himself on me. I did not know anything about sex, no one had ever spoken to me about it. I hadn’t even talked about it with my friends. I was feeling horrible from inside that without my permission my clothes are being taken off, I am being touched,” she said.
“I couldn’t even understand what was happening. I was so scared, I started crying as I was in a lot of pain, but my husband did not listen to anything. The next day when I woke up, I felt that something wrong had happened to me and I was feeling ashamed.”
According to the National Family and Health Survey-5 (2019-2021), among ever-married women aged 18-49 who have ever experienced sexual violence, 82% reported their current husband and 14% reported a former husband as the perpetrators.
According to the National Crime Records Bureau report 2022, a total of 4.45 lakh cases of crimes against women were registered during 2022, showing an increase of 4% over 2021. The report also said that a majority of cases under crime against women under the Indian Penal Code (IPC) were registered under ‘Cruelty by Husband or His Relatives’ (31.4%), while ‘Rape’ was 7.1%.
Despite these grim statistics, rape within a marriage is not recognised as a criminal offence in India.
For Kiran, this was the beginning of a six-month-long cycle of rape and brutal violence. On some occasions it would start with beatings and proceed to rape, while on other days it was the other way round.
“This cycle continued – not just at night but multiple times in a day. All day I would be working in the house, cooking, cleaning. He would come in drunk, beat me up and force himself on me. It did not matter if he was drunk or not. He would hit me with a belt, slam my head against the wall, rip my clothes off and force me to have sex. There were about five to six people in the house. Everyone could hear my screams of agony but no one would come to save me. On the off chance that they did, he would lock me up in the room and leave, taking the key with him,” she said.
Kiran, now 21, has filed for divorce, seeking redressal for domestic violence.
“Women stay quiet because they are taught from when they are children, “Pati hai, meri shaadi huyi hai, shaadi nibhaani padhegi, pati parmeshwar hai (He’s my husband, I have married him and have to stay committed to him, my husband is god). If there is no recognition of marital rape in law, and no woman can get justice for this, will women keep facing this forever?”
Labelling marital rape as rape ‘excessively harsh’: Union government
It is this primacy to the institution of marriage that has been cited by the Union government in its affidavit to the Supreme Court last year.
In October 2024, the Union government stated for the first time on record in a preliminary affidavit that it opposed the labelling of marital rape as “rape”, saying that it would be “excessively harsh” and that alternative remedies in law exist to protect married women from sexual violence.
While the affidavit acknowledged that a husband “does not have any fundamental right to violate the consent of the wife”, it added that the “consequences of such violations within marriage differ from those outside it”.
Later that month the Supreme Court deferred hearing pleas seeking the criminalisation of marital rape. A bench headed by then Chief Justice of India D.Y. Chandrachud stated that a judgment would be unlikely as the CJI was slated to retire in the next ten days. Therefore, the case was directed to be listed before a new bench and remains pending.
The lack of legal recourse for marital rape once again came to the fore when last month, the Chhattisgarh high court stated that non-consensual anal sex or any other non-consensual sexual act committed by a husband on his wife, who is above 15 years of age, is not considered an offence under the IPC. The ruling came in the case of one Gorakhnth Sharma, who was convicted of rape, unnatural offense and causing death by negligence after allegedly inserting his hand into his wife’s anus, leading to her death. However, the high court acquitted Sharma of all offences, citing the exception under Section 375, which excludes sexual intercourse or sexual acts between a husband and wife from being considered rape, provided the wife is older than 15 years.
Earlier in May 2024, the Madhya Pradesh high court had also ruled that engaging in “unnatural sex with one’s wife is not considered rape” even if it is non-consensual.
The breaking point
Despite sustaining injuries, often severe ones, Kiran was not allowed to visit a doctor for the six months for which she stayed with her husband.
“One day he broke a beer bottle and shoved it inside my vagina. Even then they did not allow me to go to a hospital, instead my mother-in-law took me to a dispensary and told them there that I had a fall. I would keep getting infections due to forced sex, but my husband would continue to forcibly have sex with me despite that,” she said.
Kiran’s breaking point came on a day she was brutalised for over three hours straight.
“He had made cuts on my whole body with a blade, chopped off my long hair which I was so fond of, yanked off the earrings from my ears. There was blood everywhere. When the neighbours raised an alarm hearing my screams, his family members came in. When they prised him off me, a gush of blood came out of my mouth. The next day I decided enough was enough and I begged them to let me go to my mother, but they refused. It was only when I promised that I would come back that they allowed me to go,” she said.
Kiran never returned to her husband’s house.
‘Yes, I am raping you’
While Kiran endured her husband’s brutality for six months, for 23-year-old Rina* the abuse continued for at least two years. Unlike Kiran, Rina’s marriage was by choice. Having met her husband in school, and with little support from her family for her studies at home, Rina went to live with him when she was just about 18, when her family threatened to stop her studies after discovering that she had been talking to a boy.
“He promised me that he would let me study, pursue my dreams of having a career, and being financially stable,” she said.
Instead, what she faced at her husband’s house was emotional manipulation, casteist abuse and rape.
“The moment I went to his house, his grandmother said, ‘Ye kaunsi choti jaat ki ladki ko le ke aaya hai (What lower caste girl have you brought home)’,” she said.
Rina, from the Scheduled Caste Chamar community, said that she had never experienced casteism before that. While his grandmother initially did not want her to even touch her food or belongings, soon all the work in the house became her responsibility, as she was castigated for studying, met with disapproval when she wanted to start a job, and emotionally manipulated by a husband who repeatedly forced himself on her, leading her to undergo as many as four abortions.
“Within one month of getting married I became pregnant. I had said no to him so many times but he kept telling me that he cannot control his urges. When I was upset that I was pregnant for the first time, he emotionally manipulated me by crying. But this soon became a pattern. I had to undergo four abortions because he kept forcing sex. Every time I would get pregnant, he would get me pills and not even let me visit a doctor,” she said.
After enduring emotional abuse by her husband and his family, Rina ultimately charted out her plan to leave. But that night her husband raped her again, and this time he announced it himself – that he was indeed raping her.
“When he started getting close to me I said no, but he said, ‘What is the problem? I am your husband’ and started forcing himself on me. I said, ‘You know what you’re doing, what this is called? And he said, ‘Rape?’ and I said yes and he said ‘Yes, I will rape you’ and went on to do so. That is when I decided that no matter what happens, I will not stay here anymore.”
Rina, who has also filed for divorce and is seeking remedy for domestic violence, said that in her FIR against her husband, she clearly mentioned her experience of marital rape.
“I could only file a case of domestic violence and not rape. When I went to the police, they did not even want to write down the details of the rape in the FIR. One officer who was there kept saying, ‘Ye chhoro, dahej ka kuch hai? Maara peeta hai? (Forget that, is there any dowry matter? Were you beaten up?)’,” said Rina.
“I don’t have any proof that this happened to me, I don’t even have papers for the four abortions I had to undergo because he kept bringing me pills. But this has happened to me. Marital rape is a reality. Consent is consent, and no means no. People think that after marriage there cannot be rape, but rape does happen after marriage. When the law itself does not recognise it, I cannot even file such a case. How will I do so? How will I fight?”
‘Saving’ the institution of marriage
In its affidavit in the Supreme Court, the Union government had said that treating marital rape as rape “may severely impact the conjugal relationship and may lead to serious disturbances in the institution of marriage”, while referring to other legal remedies available to women.
“It is submitted that the act colloquially referred to as ‘marital rape’ ought to be illegal and criminalised. The Central Government asserts that a woman’s consent is not obliterated by marriage, and its violation should result in penal consequences. However, the consequences of such violations within marriage differ from those outside it,” the affidavit stated.
“The Centre’s affidavit itself is contradictory. On the one hand it says consent is important but then it says not in a marriage,” said Monika Tiwary, Coordinator and Counselor, Crisis Intervention and Counselling Centre, Shakti Shalini, that works with survivors of domestic violence and sexual abuse.
“If it is wrong, then why not criminalise it? Just because it is in a marriage it is not a criminal offence? Every law is prone to misuse, but it is only when laws relate to women or other marginalised groups that the conversation suddenly becomes about misuse. Marital rape is rape and it is not different from the rape happening outside marriage. Let us criminalise it and take it from there.”
Prior to the petitions seeking criminalisation of marital rape reaching the Supreme Court, a division bench of the Delhi high court in May 2022 delivered a split verdict and allowed the petitioners to move the apex court, noting that substantial questions of law are involved.
While the Supreme Court deferred hearing the pleas in October 2024, in July when the new criminal laws were brought in, the exemption to marital rape was retained in Section 67 of the Bharatiya Nyay Sanhita (earlier Exception 2 under Section 376 of the IPC).
According to Delhi-based advocate Shreya Munoth, the exception to rape within a marriage itself is unconstitutional.
“It’s discriminatory. There is no logical reason, or ‘an adequate determining principle’, to differentiate rape within marriage from rape outside of marriage. The entire basis of the differential system seems to be that husbands are entitled to have conjugal relations with their wives, and that the very idea of marriage rests on the idea of having and establishing conjugal relationships with their wives. The underlying notion is that by marriage, a woman has consented to conjugal relations with her husband for all points to come. The provision permits violation of the autonomy and dignity of a woman by forcing her to have sex with her husband against her will just because she’s married.”
In its affidavit in the Supreme Court, the Union government had also stated that given the “nature of the marital institution in our socio-legal milieu, if the legislature is of the view that, for preservation of the marital institution, the impugned Exception should be retained, it is submitted that it would not be appropriate for this Hon’ble Court to strike down the Exception”.
“The Centre has said that it is the legislature’s responsibility to create an offence or to strike down an exception. They had that chance when they were enacting the BNS, purportedly to ‘decolonise’ our criminal law. They didn’t use that opportunity. So to now say that my constitutional rights or fundamental rights are left at the mercy of the legislation will render the concept of judicial review completely naught,” said Munoth.
Munoth added that both the Supreme Court and high courts as constitutional courts have the power to strike or read down provisions if they are found to be unconstitutional, which was seen in the Delhi high court’s split verdict.
“Most definitely it is within the Supreme Court’s power to strike down an unconstitutional provision. Now, the argument that the Union government has raised, which also one of the judges in the Delhi high court raised, is that by striking out this exception, you are creating a new offense and that it’s not tenable. Striking down an unconstitutional provision and as a result, casting a wider net of an existing criminal provision is not unknown to our constitutional scheme. We have lots of examples where the court has actually struck down a constitutional invalid provision, including penal provisions, because they unreasonably excluded a certain group of people,” she said.
“If you are unfairly discriminating against a specific group of people, in this case adult married women who do not have access to the remedies when they are raped by their husbands, and that discrimination – treating them as a separate class – has no rationale other than to purportedly save the institution of marriage, the provision itself is unconstitutional. The rationale of ‘saving the institution of marriage’ also further perpetuates gender stereotypes that wives cannot refuse to have sex with their husbands once married and that their role is to concede to have sex with their husbands whenever so demanded. That denudes them of their agency, which furthers the patriarchal setup that views wives as incapable and unfit of exercising their right to choice.”
Family honour and dignitarian harms
Complicating the recognition of marital rape as rape, is India’s societal structure where the idea of vocalising violence within homes is considered taboo. Seeking recourse involves questions of jeopardising family honour, with women being made the custodians of bringing shame and preserving honour.
“In my almost decade-long experience of working with women, I can count the number on my hands of the ones who have categorically declared that they have been raped within a marriage. While there are a few survivors who seek help and report marital rape, there are very few women who use the word ‘rape’. They generally say that their husbands would force sex, ‘zabardasti’, or that they did not like it when they were being forced. They usually refer to violence and abuse but not the sexual offences in a marriage. Most women feel traumatised, disgusted with themselves when their husbands force themselves but they don’t understand or acknowledge that it is actually rape because that is what are taught growing up. It is only when we dig deeper that they open up about sexual violence in a marriage but they often tend to redirect to other issues like being beaten up by their husbands,” said Tiwary.
“Women who come out and speak up are mostly from economically marginalised homes. In our experience, such women lose the sense of ‘shame’ and family honour because they have already suffered the indignity of getting beaten up in front of everyone in the neighbourhood, they are getting violated in full public view. They feel everyone already knows about it so it is easier for them to get out. But for middle class and upper middle class families, it is a case of status and family shame. Even if they come forward, they don’t want rape and violence to be recorded,” she added.
That there is no recognition of marital rape as rape causes women both symbolic and material harm. It deprives them of their agency and accords them secondary status as citizens, with rights fewer than those of their husbands.
“Symbolically, you are telling wives that your experience of being violated within your marriage by your husband is not sufficient to qualify as rape, completely invalidating, trivialising and invisibilising their experience which causes dignitarian harms, and provisions causing such harms have been recognised by courts to be sufficient to hold a provision to be unconstitutional,” said Munoth.
“In this case, however, the discrimination is not merely symbolic, but also material, because the remedies that the Union government has identified, both under the DV [Domestic Violence] Act as well as under the IPC – now BNS – which is for sexual harassment and cruelty are largely insufficient. The DV Act is very clearly a civil procedure, with criminal remedies kicking in on violation of an order of the court, but otherwise it’s a civil statute with civil remedies. The other provisions of the IPC (and BNS) identified by the Union government are inadequate and incomparable to the offence of the rape and the punishment prescribed. If the Union government believes that the offence of sexual harassment is sufficient for a case of non-consensual forcible sex, the offense of rape itself should not exist on statute books.”
*Names of the survivors have been changed to protect their identities.