Trigger Warning: This article contains mentions of marital rape
In February 2025, the Chhattisgarh High Court acquitted a man of rape, ‘unnatural sex’, and culpable homicide, reversing a trial court’s verdict convicting him. The man was charged with these offences after he anally raped his wife, which then led to her death. Before she passed away, 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 at all. It was based on the law itself. Exception 2 in Section 63 of the Bharatiya Nyaya Sanhita (BNS) states that ‘sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape’. Exception 2 of Section 375 of the Indian Penal Code (which was applied in the Chhattisgarh case because it pre-dated the BNS) also stated the same.
Essentially, a man raping his wife is not legally recognised as sexual violence under Indian law. In the Chhattisgarh case, the court noted that the wife’s consent ‘loses its importance’. The crux of the issue, however, is that the court was not acting out of line. It adhered strictly to the law as Parliament intended.
Where does the exception to the rape law come from?
Indian law exempts husbands entirely from being prosecuted for rape against their wives, as long as the wife is an adult. Such an exception to rape laws can be traced back to a 1736 statement made by English jurist Matthew Hale. Hale claimed that a husband cannot be guilty of raping his lawful wife because she, through marriage, gives herself to him permanently. Hale provided no precedent for this assertion and stated it as fact. While England removed this marital rape exception from its law in 1991, India continues to retain it.
The Protection of Women from Domestic Violence Act, 2005, acknowledges sexual violence within marriage. However, the Act only considers it a civil wrong, not a crime.
The exception persisted through independence, the 2013 amendments to rape laws following the Delhi gang rape case, and the BNS recodification in 2023. Parliament had several opportunities to remove the marital rape exception from the books, but each time it retained it as it is. The Protection of Women from Domestic Violence Act, 2005, acknowledges sexual violence within marriage. However, the Act only considers it a civil wrong, not a crime. Therefore, a wife can seek a protection order or compensation, but she cannot file a criminal case against her husband for rape.
What the data says
The National Family Health Survey (NFHS-5), 2019-21, India’s largest health survey that saw participation from over six lakh sample households, found that among ever-married (currently or formerly married) women who reported facing sexual violence, 95.7 per cent identified their husbands or former husbands as the perpetrators. 6.2 per cent of currently married women between the ages of 18 and 49 reported experiencing sexual violence at least once during their lifetime, and of them, 82 per cent identified their current husband as the perpetrator.
6.2 per cent of currently married women between the ages of 18 and 49 reported experiencing sexual violence at least once during their lifetime, and of them, 82 per cent identified their current husband as the perpetrator.
Around 18 per cent of married women stated that they cannot refuse sex to their husbands even when they do not want to have sex. Approximately 20 per cent of husbands said they would reprimand their wives for their refusal. About 13 per cent said they would cut off financial support. As per the NFHS-5, only 32 per cent of married women are employed in India. Therefore, for most women, the prospect of losing financial support is not merely a hypothetical but a devastating possibility.
Marital rape is widespread in India but continues to remain hidden. Many women endure sexual violence within marriages, but they have little to no legal recourse to protect against it.
A decade in court, yet no verdict
The legal challenge against the marital rape exception has been progressing through India’s courts since 2015. The RIT Foundation filed a petition in the Delhi High Court to deem Exception 2 to the rape law unconstitutional, on the grounds that it violates Articles 14, 15, 19, and 21 of the Constitution.
The case remained unheard for years. In May 2022, the Delhi High Court finally issued a ruling, but it resulted in a split verdict. Justice Rajiv Shakdher deemed the exception unconstitutional, while Justice C Hari Shankar believed it was a matter for Parliament. Following the split verdict, the case went to the Supreme Court.
In October 2024, the Union government submitted a 49-page affidavit opposing the removal of the exception for the first time. The affidavit claimed that criminalising marital rape would be ‘excessively harsh’ and could destabilise marriages.
The Supreme Court clubbed various petitions on the matter of marital rape, and hearings commenced in January 2024, led by then Chief Justice D Y Chandrachud. In October 2024, the Union government submitted a 49-page affidavit opposing the removal of the exception for the first time. The affidavit claimed that criminalising marital rape would be ‘excessively harsh‘ and could destabilise marriages. It urged the court to defer to Parliament on the matter, noting that lawmakers had chosen to retain the exception in both 2013 and during the drafting of the BNS.
After Chief Justice Chandrachud’s retirement, hearings in the matter were postponed. As of early 2026, the case remains before a reconstituted bench with no set verdict date. Lower courts continue to apply the law as it is written, and when they don’t, they are compelled to.
In Hrishikesh Sahoo v. State of Karnataka, the Karnataka High Court said ‘rape is rape‘ and deemed the marital rape exception ‘regressive‘ and rejected the husband’s petition to dismiss the case on the basis of Exception 2 to IPC Section 375. However, the High Court’s decision to allow the husband to be tried for rape was later temporarily stayed by the Supreme Court.
In contrast, the Madhya Pradesh High Court ruled in 2024 that forced sexual intercourse by a husband does not qualify as rape. The Chhattisgarh ruling in February 2025 followed this same logic, allowing a man whose wife died as a consequence of his raping her to walk free.
The resistance against criminalisation
Marital rape is criminalised in over 150 countries. India retains the marital rape exception alongside a few other countries, including Afghanistan, Bangladesh, and Pakistan. The United Nations Committee on the Elimination of Discrimination Against Women has urged India to criminalise marital rape, viewing it as a fundamental obligation under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), a treaty India has ratified.
The law’s silence is not neutral; it serves as a barrier that keeps women trapped. However, criminalisation of marital rape continues to be resisted, citing several reasons.
The law’s silence is not neutral; it serves as a barrier that keeps women trapped. However, criminalisation of marital rape continues to be resisted, citing several reasons. First is the fear of false accusations among a few sections of society. Especially in the manosphere, there is a worry that making marital rape illegal could lead to wives misusing the law in divorce or custody battles. False complaints pertaining to any crime might occur within the justice system. However, nations that have criminalised marital rape have not seen any significant surge in false cases. Furthermore, NFHS-5 data shows that over 99 per cent of women enduring sexual violence don’t disclose the abuse to anyone, which highlights under-reporting as a more critical issue.
The second concern relates to the separation of powers. The government’s affidavit presents a legitimate constitutional argument: Parliament has reviewed rape laws multiple times and consistently left the exception intact. The Supreme Court can only strike down a law if it finds it unconstitutional, which is a higher standard than deeming it outdated or unjust.
The third argument states that existing laws are adequate to address marital rape. The Domestic Violence Act and Section 498A of the IPC (now Section 85 of the BNS) address spousal cruelty and are cited as sufficient protections. The Chhattisgarh case directly challenges this claim. Following the acquittal for rape and unnatural offences, the remaining charge was that of cruelty, which carries lighter penalties. If this is the protection available, ‘sufficient’ is not the correct term for it.
Further, there is a clear challenge in proving these cases because marital rape occurs in private. There are no witnesses or neutral parties. In court, the case comes down to a he-said, she-said situation. This complicates prosecution in many situations. However, this challenge is not unique to marital rape. It reflects the fundamental difficulty of addressing rape itself. Most sexual violence occurs without witnesses. Courts rely on medical evidence and the credibility of survivor testimonies to navigate this. The necessary tools exist.
However, the difficulty in proving such crimes calls for better investigation standards, trained prosecutors, and survivor-focused evidence practices, not legal immunity.
In fact, the Chhattisgarh case demonstrates that evidence can exist. In this case, the victim’s dying declaration was recorded by a magistrate. Even though the court chose not to rely on it, this challenges the belief that proof is unavailable in all cases. However, the difficulty in proving such crimes calls for better investigation standards, trained prosecutors, and survivor-focused evidence practices, not legal immunity.
What happens next
Some actions don’t need to wait for the Supreme Court. States can improve the implementation of the Domestic Violence Act by funding shelters, sensitising and training police to treat marital sexual violence seriously, and ensuring that protection orders are accessible for women who cannot go through the courts.
And when the Supreme Court finally makes a ruling, it could instruct Parliament to create new legislation within a set timeframe instead of simply striking the exception down. Some legal experts have suggested this as a way to respect the separation of judicial and legislative powers while encouraging legal reform. Parliament can also take action independently. Removing the marital rape exception from Indian law requires a bill, a majority vote, and the desire to pass the bill. The legal complexity is low; the political challenge is the true barrier.
What cannot persist is the current situation: an unresolved constitutional challenge, a Supreme Court verdict without a timeline, and lower courts issuing rulings like the Chhattisgarh acquittal — not due to incorrect judgment but because the law offers no other alternative. A victim provided a dying declaration, the law recognises that, yet it turned away.
