Is Marital Rape a Crime in India? Current Legal Position 2026

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Introduction

Few legal questions in India carry the weight — moral, constitutional, and political — that the question of marital rape does. At its core, the question is simple: can a husband be prosecuted for raping his wife? The answer, under Indian law as it currently stands, is: generally, no. But the legal position is more layered than that single answer suggests, and it is evolving — through judicial decisions, legislative debate, and constitutional challenge — in ways that make 2026 a particularly significant moment to examine the issue carefully.

This article explains the current legal position on marital rape in India, the statutory provisions that create the marital rape exception, the constitutional challenges that are pending and have been decided, the protections that do exist for wives even in the absence of a marital rape offence, the international comparison, and the direction in which Indian law appears to be moving.

For legal assistance on domestic violence, sexual offences within marriage, or related matters, the family law and criminal law team at QuickDivorce.in provides confidential consultations across all jurisdictions in India.

What Is the Marital Rape Exception?

The marital rape exception is a provision in criminal law that exempts a husband from prosecution for rape committed against his own wife. It is rooted in a legal doctrine articulated by the English jurist Matthew Hale in the seventeenth century — that a wife, by virtue of her marriage, has given irrevocable consent to sexual intercourse with her husband, and that consent cannot be withdrawn.

This doctrine — never enacted as statute in England but treated as common law — was inherited by Indian law through the colonial-era Indian Penal Code of 1860. It survived the repeal of the IPC and its replacement by the Bharatiya Nyaya Sanhita, 2023. It remains, as of 2026, a part of Indian criminal law.

The Statutory Provision: Bharatiya Nyaya Sanhita 2023

The Bharatiya Nyaya Sanhita (BNS), 2023 replaced the Indian Penal Code, 1860 with effect from July 1, 2024. The primary provision on rape is Section 63 of the BNS, which mirrors the structure of Section 375 of the IPC.

Section 63 defines rape as sexual intercourse with a woman under circumstances that include: against her will, without her consent, with consent obtained by fear or fraud, and several other specified conditions.

The exception to Section 63 reads:

Exception 2: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.

This is the marital rape exception as it stands in Indian law today. It carves out from the definition of rape all sexual intercourse by a husband with his wife — provided the wife is eighteen years of age or older — regardless of whether the wife consented.

The minimum age of eighteen reflects a prior judicial development: the Supreme Court in Independent Thought v. Union of India (2017) struck down the earlier exception, which extended to wives as young as fifteen, and held that sexual intercourse with a wife below eighteen years constitutes rape regardless of marriage.

What Changed With the BNS: Continuity, Not Reform

When the Bharatiya Nyaya Sanhita replaced the Indian Penal Code in 2024, there was significant public debate about whether the new code would abolish the marital rape exception. The Justice J.S. Verma Committee, constituted after the 2012 Delhi gang rape, had recommended the removal of the exception in 2013. Multiple law reform bodies and civil society organisations had advocated for its removal over the intervening decade.

The BNS retained the exception. Exception 2 to Section 63 of the BNS is substantively identical to Exception 2 to Section 375 of the IPC. The legislative decision — made in full awareness of the debate — was to preserve the marital rape exception in the new criminal code.

As of May 2026, the transition from the IPC to the BNS has not changed the legal position on marital rape. The exception survived the most comprehensive revision of Indian criminal law since 1860.

The Constitutional Challenge: Where Things Stand in 2026

The Delhi High Court Split Verdict (2022)

A division bench of the Delhi High Court delivered a split verdict on the constitutional validity of the marital rape exception in May 2022 — a verdict that was reviewed and reaffirmed in January 2025.

Justice Rajiv Shakdher held that the marital rape exception is unconstitutional, reasoning that: — It violates Article 14 (right to equality) by treating married women differently from unmarried women without rational basis — It violates Article 21 (right to life and personal liberty) by denying married women bodily autonomy and the right to refuse sexual intercourse with their husbands — It is grounded in the colonial-era Hale doctrine — the legal fiction of irrevocable spousal consent — which is incompatible with constitutional values of dignity and equality — The majority, drawing from the Puttaswamy (2017) privacy ruling, affirmed that non-consensual marital sex constitutes a violation of bodily integrity under Article 21

Justice C. Hari Shankar held the exception constitutionally valid, reasoning that: — Marriage is a distinct social institution that the legislature may legitimately treat differently — The legislature has made a considered policy choice and courts should not substitute judicial judgment for legislative policy on social matters — Adequate civil and criminal remedies exist under the Domestic Violence Act and other statutes

The Supreme Court: Pending, With No Verdict Date

The Supreme Court has repeatedly delayed hearing the challenge, and as of 2026, it has yet to hold a decisive hearing on marital rape. After Chief Justice Chandrachud’s retirement, hearings were postponed. As of early 2026, the case remains before a reconstituted bench with no set verdict date.

By October 2024, a three-judge bench had begun hearing the batch of petitions challenging Exception 2 in the IPC and its BNS equivalent, but hearings were deferred beyond the Chief Justice’s retirement, and the matter remains listed before a new bench.

In Jane Kaushik v. Union of India (November 2025), the Supreme Court explicitly deferred marital rape pleas, invoking the separation of powers doctrine, stating that courts cannot legislate where Parliament has spoken via BNS Exception 2. The court’s eventual ruling on marital consent, autonomy, and equality will fundamentally shape policing, prosecution, and family law practice across India. Until then, legal uncertainty persists.

Recent High Court Rulings: Conflicting Positions

In the absence of a Supreme Court verdict, High Courts across India have taken sharply conflicting positions — a situation that creates different effective laws for women in different states.

Karnataka High Court: “Rape Is Rape”

In Hrishikesh Sahoo v. State of Karnataka, the Karnataka High Court said “rape is rape” and deemed the marital rape exception “regressive,” rejecting the husband’s petition to dismiss the case on the basis of Exception 2 to Section 375 IPC. The High Court allowed the husband to be tried for rape — however, this decision was later temporarily stayed by the Supreme Court.

Madhya Pradesh High Court: Forced Sex in Marriage Is Not Rape

The Madhya Pradesh High Court ruled in 2024 that forced sexual intercourse by a husband does not qualify as rape. In Shubham Mangal v. State of M.P. (2026), the MP High Court quashed rape and Section 377 IPC charges for forced unnatural sex in marriage, classifying it as “cruelty under Section 498A IPC, not rape,” and shifted focus to domestic violence remedies.

Chhattisgarh High Court: Acquittal Despite Dying Declaration

In February 2025, the Chhattisgarh High Court acquitted a man of rape, unnatural sex, and culpable homicide, reversing a trial court’s conviction. The man had been charged after he anally raped his wife, which led to her death. Before she died, she made a dying declaration to a magistrate detailing what her husband had done. Even after hearing her account — and despite the dying declaration’s legal weight under Indian evidentiary law — the court acquitted him. The court’s reasoning did not relate to a lack of evidence; it was based on Exception 2 to Section 63 of the BNS itself.

This Chhattisgarh ruling stands as the starkest illustration of the real-world consequences of the marital rape exception as of 2026.

Protections That Do Exist for Wives: What the Law Offers

While marital rape is not a criminal offence under Section 63 of the BNS, this does not mean a wife who is sexually assaulted by her husband has no legal recourse. Several overlapping legal frameworks provide partial — though incomplete — protection:

Protection of Women from Domestic Violence Act, 2005

📋 The Domestic Violence Act defines “domestic violence” to include sexual abuse — defined as any conduct of a sexual nature that abuses, humiliates, degrades, or otherwise violates the dignity of the woman 📋 A wife subjected to forced sexual intercourse by her husband can file a complaint under the Domestic Violence Act seeking protection orders, residence orders, and monetary relief 📋 The relief under the Domestic Violence Act is civil in nature — the husband is not prosecuted for rape, but the wife can obtain legal protection and financial support 📋 Protection orders can prohibit the husband from committing further acts of domestic violence, including sexual abuse

Section 498A of the IPC / Section 85 of the BNS: Cruelty by Husband

📋 Section 498A of the IPC (now Section 85 of the BNS) criminalises cruelty by a husband or his relatives toward a wife 📋 “Cruelty” is defined to include conduct that causes grave injury to the wife’s physical or mental health, and wilful conduct that drives her to contemplate suicide 📋 Repeated forced sexual intercourse — while not prosecutable as rape — may constitute cruelty under this provision if it causes the requisite harm 📋 This is a criminal provision, and conviction can result in imprisonment of up to three years

Separation and Divorce Grounds

📋 A wife who has experienced sexual violence within marriage has grounds to seek divorce — cruelty is a recognised ground for divorce under Section 13 of the Hindu Marriage Act 📋 Courts have, in multiple decisions, held that forced sexual intercourse constituting cruelty can support a wife’s petition for divorce on the ground of cruelty 📋 The wife may also seek maintenance and custody relief as part of the divorce proceedings

Section 377 of the IPC / BNS Equivalent: Unnatural Offences

📋 Section 377 of the IPC — which criminalised “unnatural offences” — applied to unnatural sexual acts regardless of marital status 📋 Some courts had held that a husband could be prosecuted under Section 377 for unnatural sexual acts against his wife, since the marital rape exception under Section 375 did not extend to Section 377 📋 The BNS treatment of this area is contested — as the Chhattisgarh and Madhya Pradesh High Court rulings in 2025 and 2026 demonstrate, courts have disagreed on whether forced unnatural sex within marriage is prosecutable or falls within the marital exception

The Arguments For and Against Criminalisation

Arguments for Criminalising Marital Rape

Bodily autonomy is not waived by marriage: Marriage is a contractual and social institution — it does not and cannot constitute irrevocable consent to sexual intercourse. A woman retains the right to refuse sexual intercourse at any point, regardless of her marital status. This is the constitutional argument rooted in Article 21.

The equality argument: Unmarried women who are raped have the full protection of rape law. Married women do not. This differential treatment — based solely on marital status — has no rational basis and constitutes unconstitutional discrimination under Article 14.

The Hale doctrine is a discredited relic: The marital rape exception is premised on a seventeenth-century legal fiction articulated by a judge who also presided over witch trials. It has been rejected by the country that produced it — England criminalised marital rape in 1991. There is no principled reason to retain a discredited colonial doctrine in Indian law.

Civil remedies are insufficient: Domestic violence relief is civil, not criminal. A husband who rapes his wife faces no criminal prosecution and no penal consequence beyond the civil orders a court may make. This creates a situation where the most intimate violation of a woman’s bodily autonomy attracts less legal consequence than theft.

Marriage does not eliminate harm: The psychological and physical harm of rape is not diminished by the existence of a marital relationship. Survivor testimony, medical evidence, and psychological research are unanimous on this point.

Arguments Against Criminalisation (and Their Limitations)

Legislative domain argument: The Supreme Court has consistently held that criminalising marital rape is a matter of legislative policy, not judicial determination. Parliament — which retained the exception in the BNS — has spoken. Courts should not legislate.

Limitation: This argument does not address the constitutional validity of the exception. Parliament cannot legislate away fundamental rights, and the court’s role in constitutional adjudication is precisely to assess whether legislation meets constitutional standards.

Misuse argument: Critics argue that criminalising marital rape will lead to false complaints, used as leverage in matrimonial disputes and divorce proceedings.

Limitation: The misuse argument applies, by identical logic, to Section 498A and every other provision of family law. The possibility of misuse does not justify denying protection to genuine victims. Procedural safeguards — investigation standards, evidentiary requirements — address misuse; abolishing the offence entirely does not.

Stability of marriage argument: Criminalising marital rape will destabilise the institution of marriage.

Limitation: This argument essentially treats the preservation of the marital institution as a value superior to a married woman’s bodily autonomy and dignity. It is constitutionally untenable under a framework that places human dignity at the core of fundamental rights.

The International Comparison

India is among a diminishing minority of countries that retain the marital rape exception. The global trajectory is overwhelmingly toward criminalisation:

📋 United Kingdom: Criminalised marital rape in 1991, following R v. R in the House of Lords 📋 United States: All fifty states criminalised marital rape by 1993 📋 Nepal: Criminalised marital rape — India’s neighbour and a fellow South Asian nation with a Hindu majority population — has recognised marital rape as a criminal offence 📋 Australia, Canada, South Africa, and most European nations: All criminalise marital rape 📋 Bangladesh and Pakistan: Retain the marital rape exception in their respective penal codes

The international comparison matters not because Indian law must follow foreign law, but because the experience of other jurisdictions demonstrates that criminalising marital rape does not destabilise society, does not result in waves of false prosecutions, and does not fundamentally alter the institution of marriage — it simply extends to married women the same protection of criminal law that unmarried women enjoy.

What Needs to Change: The Reform Agenda

Legislative amendment to the BNS: The most direct route to criminalising marital rape is an amendment to the Bharatiya Nyaya Sanhita deleting Exception 2 to Section 63. This requires political will and parliamentary action — neither of which has materialised as of 2026.

Supreme Court verdict: A definitive Supreme Court ruling striking down Exception 2 as unconstitutional would have immediate nationwide effect and would not require legislative action. The matter is before the court, but no verdict date has been set.

Procedural safeguards alongside criminalisation: Reform advocates have consistently proposed that criminalisation be accompanied by procedural safeguards — mandatory investigation protocols, evidentiary standards, and provisions to prevent the use of marital rape complaints as purely tactical instruments in matrimonial litigation — while ensuring that genuine victims receive justice.

Awareness and sensitisation: Even where legal protections exist — under the Domestic Violence Act, Section 498A — they are underutilised because of low awareness among women, stigma around reporting sexual violence within marriage, and inadequate sensitisation of police and judicial officers to the nature and harm of marital sexual violence.

Frequently Asked Questions

Is marital rape a crime in India in 2026? No. Under Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023, sexual intercourse by a husband with his wife — the wife being eighteen years or older — is explicitly excluded from the definition of rape. Marital rape is not a criminal offence under Indian law as of May 2026.

Can a wife file any case against her husband for forced sex? Yes, though not under rape law. A wife can file a complaint under the Protection of Women from Domestic Violence Act (which defines sexual abuse as domestic violence), under Section 85 of the BNS (cruelty by husband), and can cite the conduct as a ground for divorce on the basis of cruelty. Criminal prosecution for rape, however, is not available.

Has the Supreme Court given any verdict on marital rape? No definitive verdict has been delivered as of May 2026. The matter is pending before a reconstituted bench of the Supreme Court. Hearings have been repeatedly deferred, and no verdict date has been fixed.

What did the Delhi High Court say about marital rape? The Delhi High Court delivered a split verdict in 2022 — one judge held the marital rape exception unconstitutional, the other upheld it. The matter was appealed to the Supreme Court, where it remains pending.

Is forced unnatural sex within marriage a crime? This is currently unsettled. The Karnataka High Court suggested it could be prosecuted; the Madhya Pradesh and Chhattisgarh High Courts held it is not rape. The Supreme Court has stayed the Karnataka High Court’s order. The legal position on this specific question is in active judicial flux.

Can a wife use marital rape to seek divorce? Yes. While forced sexual intercourse cannot be prosecuted as rape, a court can treat it as evidence of cruelty, which is a ground for divorce under Section 13 of the Hindu Marriage Act. Multiple courts have recognised that sexual violence within marriage constitutes cruelty sufficient to ground a divorce petition.

Conclusion

The legal position on marital rape in India in 2026 is one of deliberate legislative choice and judicial paralysis. Parliament retained the marital rape exception when it enacted the Bharatiya Nyaya Sanhita, consciously choosing to carry a colonial-era exemption into India’s new criminal code. The Supreme Court has deferred decision on the constitutional challenge, leaving lower courts to apply a law that produces outcomes — such as the acquittal of a man whose wife died after he raped her — that much of the legal community and the public consider unjust.

The arguments for criminalising marital rape are grounded in constitutional text, judicial precedent on bodily autonomy and dignity, and the experience of virtually every comparable legal system in the world. The arguments against criminalisation rest on legislative deference, speculative misuse concerns, and an institutional preference for marriage-as-institution over the fundamental rights of the individuals within it.

Until Parliament acts or the Supreme Court delivers its verdict, married women in India occupy a position that the law itself acknowledges: their consent within marriage is legally irrelevant to whether a sexual act constitutes rape. That position is, increasingly, untenable under any serious constitutional analysis.

Know your rights. Seek legal help. The law is changing — but it has not changed yet.

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