In 2000, the Law Commission rejected an argument that there was no reason for rape alone to

be shielded when other instances of violence by a husband towards a wife were criminalised. It
expressed concern that criminalisation of marital rape would lead to “excessive interference
with the institution of marriage.”1

The Parliamentary Standing Committee on Home Affairs that examined the bill rejected any
suggestion of criminalising marital rape. Its reasoning was that the “entire family system will be
under greater stress and the committee may perhaps be doing more injustice.” Additionally, it
felt that sufficient remedies already existed, including Section 498A of the Indian Penal
Code, the Protection of Women from Domestic Violence Act, 2005 (PWDVA, 2005), and various
other personal laws dealing with marriage and divorce.2
In Independent Thought vs Union of India (2017), the Supreme Court increased the age limit from
15 to 18 years. This exception ensures that there will not be rape charges filed against a husband
who has sexual relations with his wife who is over 18 years of age without her consent. Because of
this exception, husbands have been immune from any rape committed by them on their wives.

As a coin has two faces, many people believe that criminalising rape in marriage will be detrimental
to Indian society. Here is the list of all arguments against criminalising marital rape:

1. In its submission to the Delhi High Court in January 2022, the Union Government stated that
criminalising rape would thwart the marriage institution and become an easier way for harassing
spouses.

2. Justice Dipak Misra, the former Chief Justice of India, said that “in my opinion, marital rape should
not be regarded as a crime in India, as it will create anarchy in families, and our country relies on its
family platform for its success of upholding family values.”

3. A man’s sexual acts with his wife cannot be recorded as evidence in court, as there is no lasting
evidence in such a case.

4. In 2016, an Indian official told the Rajya Sabha that the concept of marital rape is international
and could not be applied in Indian contexts due to factors such as poverty, illiteracy, social customs,
faiths, and sanctity of marriages.

5. Women may feel pressured to report marital rape due to social stigma, child impact, and family
shame.

6. On the question that the husband raped his wife, the wife’s testimony is often the only
evidence of the rape.

7. There may have been consensual sexual activity between the spouses before the rape, so DNA or
semen samples would be irrelevant.

8. Because both the husband and wife would have engaged in sexual relations frequently, it is
almost impossible to prove the absence of consent.3

1
https://www.theindiaforum.in/law/criminalising-marital-rape-india
2
https://www.theindiaforum.in/law/criminalising-marital-rape-india
3
https://www.writinglaw.com/criminalisation-of-marital-rape/
  Destabilise marriage as an institution:

It may create absolutely anarchy in families and destabilise the

o
institution of marriage.
 Misuse of law:

It may become an easy tool for harassing the husbands by

o
misusing the law similar to the growing misuse of section 498A
(harassment caused to a married woman by her husband and in-
laws) of the IPC.
 Law Commission has not recommended:

Indian Law Commission and the Parliamentary Standing

o
Committee on Home Affairs after thoroughly examining the
matter did not recommend the criminalization of marital rape.
 Implementation issues:

oCriminalizing marital rape will create serious implementational

issues like veracity of testimony, evidences in the courts etc.
 Diversity in Culture:

India has its unique problems due to various factors like literacy,
o
lack of financial empowerment of the majority of females, the
mindset of the society, vast diversity, poverty, etc. and these
should be considered carefully before criminalizing marital rape.
 Awareness is more important:
o Merely criminalizing marital rape may not stop it as “moral and
social awareness” plays a vital role in stopping such an act.

Justice C Hari Shankar disagreed and held that the marital rape exception did not violate any
fundamental rights. “Introducing, into the marital relationship, the possibility of the husband
being regarded as the wife’s rapist, if he has, on one or more occasion, sex with her without
her consent would, in my view, be completely antithetical to the very institution of marriage,
as understood in this country, both in fact and in law,” he said

“(The marital rape) Exception, far from being unconstitutional, serves a laudatory purpose,
and is in pre-eminent public interest, aimed at preservation of the marital institution,” said
Justice Shankar.

Criminalising marital rape would amount to creating a new offence without consideration of
the social impact and the courts did not have the legitimacy to legislate, Justice Shankar
argued.

This is the case now pending before the Supreme Court. 4

4
RIT Foundation vs Union of India
 Similarly, in a much cited 1973 decision of the Delhi High Court in Rita Nijhawan vs.
Balakishan Nijhawan, the court observed that sex is the very “foundation of
marriage” and without it would be impossible for any marriage to continue for long. 5

RIT Foundation v Union of India

1. The rationale for preserving the marital rape exemption is that recognising marital rape as a criminal
offence would destroy the institution of marriage.
2. In 2019 former Chief Justice of India Dipak mishra said that “marital rape should not be made a crime in
India, because it will create absolute anarchy in families and our country is sustaining itself because of the
family platform which upholds family values’’.
3. Second, once a woman is married, she hands over-ending continuous sexual content to her husband.
4. Another argument is that since marriage is a sexual relationship, determining the validity of a marital rape
allegation would be difficult. Women may misuse the law in marital rape.
5. Marital rape exception is inconsistent with other sexual offence which make no such exemption for
marriage.Thus a husband may be tried for offence such a sexual harassment, molestation, voyeurism and
forceable disrobing in the same way us any other man.
6. Marital rape exception is an insult to constitutional goals of individual autonomy, dignity and of gender
equality.
7. Joseph Shine v. Union of India(2018), the SC held that the offence of adultery was unconstitutional
because it was founded on the principle that a woman is her husband’s property after marriage.
8. The marital rape exception betrays a similar patriarchal belief: that upon marriage a wife’s right to personal
and sexual autonomy, bodily integrity and human dignity are surrendered. her husband is her sexual master
and his right to rape her is legally protected.
9. Article-21 of the constitution of India tells the right to live with human dignity and stands out among the
most fundamental components of the right to life which perceived independence of a person.
10. Supreme court has held in a catena of cases that the offence of rape abuses the right to life and the right to
live with human dignity of victim of the crime of rape.
11. State of Maharashtra v. Madhkar Narayanan, the SC has held that every woman is entitled to her sexual
privacy and is not open to any and every person violating her privacy as and whenever he wishes.
12. Justice K.S. Puttaswamy v. Union of India, settled that the right to make sexual decisions that envisaged is
in the right to privacy.
13. The marital rape exception prima facie violates article 14 of the constitution as it creates the classification
between married and unmarried and women and denies equal protection of criminal legislation to the
former.
14. The UN(CEDAW) convention on eliminating all forms of discrimination against women, which India
signed, has viewed that this sort of discrimination against women violates the principle of equality of rights
and respect for human dignity.
15. Kerala high court “Treating wife’s body as something owing to husband and committing a sexual act
against her will is nothing but marital rape. Right to respect for his or her physical and mental integrity
encompasses bodily integrity and any disrespect or violation of individual autonomy”.
16. Delhi high court- both men and women had a right to say no, and that marriage doesn’t mean consent.
17. In Bodhisattwa Gautam V. Subhra Chakraborty, the court held that rape is, to a lesser degree, a sexual
offence than a demonstration of hostility for corrupting and mortifying the ladies. Therefore, the marital
rape exception principle violates the spouse’s entitlement to live with human dignity.6

5
https://article-14.com/post/why-making-marital-rape-a-crime-is-unlikely-to-provide-married-women-the-
legal-backing-to-say-no-to-forced-sex-6494ffaa66bab
6
https://teamattorneylex.in/2023/04/13/rit-foundation-vs-union-of-india-2022-scc-online-del-1404/
#:~:text=RIT%20Foundation%20v.,(AIDWA)%20and%20two%20individuals.