India’s marital rape exception: When law makes violence invisible

In 2022, a woman in Karnataka approached the High Court with evidence that her husband had “treated her as a sex slave”, subjecting her to repeated sexual assault throughout their marriage.

The court observed that “rape is rape, be it by a man or a husband”. But it was unable to proceed with prosecuting the action under Section 375 of the Indian Penal Code which criminalises nonconsensual sexual intercourse and penetration.

This is because Exception 2 of this section carves out a sweeping exemption: sexual intercourse by a man with his own wife, if she is above 18, is not rape.

The Karnataka case was not an isolated one. According to the National Family Health Survey 5, one in 18 women in India who has ever been married reports sexual violence by a husband.

But this number tells only part of the story. The untold part reveals how this legal exemption does not just deny justice – it erases the crime itself from our ability to measure, name and address it.

India is among the 108 countries worldwide that still refuse to explicitly criminalise marital rape, even as more nations join the 77 that have already done so.

Exception 2 has been retained in the Bharatiya Nyaya Sanhita, which replaced the Indian Penal Code in 2023. (Exception 1 says that medical interventions do not constitute rape.)

The history of this exemption is a study in contradiction. In 2000, The Law Commission rejected the suggestion that it be deleted, warning against “excessive interference with the institution of marriage”. But in 2013, the Justice Verma Committee, formed after national outrage over the Delhi gang rape, categorically urged it to be removed, arguing that marriage cannot justify non-consensual sex.

Despite this recommendation, every legislative attempt since to do so has failed. The government has asserted that marital rape “cannot be applied in the Indian context” due to the sacred status of marriage.

The Protection of Women from Domestic Violence Act does recognise marital rape – but only as domestic violence. The law offers civil remedies rather than criminal prosecution. A woman can seek protection orders, maintenance, even judicial separation. But her husband faces no criminal record, no imprisonment under rape provisions.

The message is clear: the same act is a heinous crime outside marriage but merely a "domestic dispute" within it.

This creates a constitutional crisis. As legal scholar Sarthak Makkar argues, Exception 2 violates the guarantee of equality in Article 14 of the Constitution by creating two classes of women: those raped by their husbands, for whom the law offers no criminal remedy, and those raped by anyone else, who receive full legal protection against sexual violence.

The Supreme Court has repeatedly affirmed that the freedom to make intimate choices lies at the heart of personal liberty. Yet, by presuming perpetual consent within marriage, Indian law denies married women the very autonomy that the Constitution protects.

Here is where legal exemption creates a vicious cycle. When law erases marital rape from the penal code, research loses the language to measure it.

Among women aged 18-49 who have been married, roughly 5% report sexual violence by a husband or partner. But the numbers fragment dramatically. While: only 5.6% of currently married women report sexual violence, nearly 30% of divorced or separated women do.

This is not because divorced women face more violence – it is because many women disclose such experiences only after leaving the marriage, when it is finally safe to speak about what happened to them.

Across socioeconomic groups, the pattern is consistent: reporting remains stubbornly low regardless of wealth, education or area of residence, ranging from 3% among the richest to 9% among the poorest.

These low numbers do not mean that marital rape is rare – they mean many women do not identify what is happening to them as rape. NFHS-5 shows that more than 20% of rural, poor and less-educated women believe a husband is justified in beating his wife if she refuses sex.

This creates a disturbing paradox: in communities where more women believe wife-beating for refusing sex is justified, fewer women disclose sexual violence when asked by survey interviewers.

The pattern is stark. Looking at the wealth quintiles, justification rates drop from 15.3% among the poorest to 7.9% among the richest, but the reporting of forced sex drops even more steeply, from 9.85% to just 3.08%.

The same pattern holds across education levels: as women gain more schooling, fewer justify violence (from 16.2% with no education to 6.6% with higher education), but reporting also falls (from 8.12% to 2.65%).

This inverse relationship reveals the measurement crisis: when justification is high and reporting is low in the same population, it suggests many women do not identify forced sex as violence. If a woman believes refusal to have sex with her husband deserves punishment, she may not interpret forced sex as abuse. She may call it “marital duty” or “tension” – anything but rape.

When coercion is normalised, it disappears from data. That is why the NFHS numbers only capture recognition of violence but not its actual scale. The survey's questions are also narrow, asking about "forced sex" but excluding oral or anal penetration, insertion of objects or coerced pornography, acts that would all constitute rape outside marriage.

The term “marital rape” appears only once in the entire 700-page NFHS-5 report. Even when data shows that 6% of women who have ever been married report forced sex by a husband, policymakers read it as “domestic violence”, not rape. The language shapes what we see.

Ground-level evidence tells a different story. A hospital-based study in Mumbai reviewed the counselling and medico-legal records of women seeking crisis support. Over half disclosed sexual violence by their husbands, including forced penetration, insertion of objects and behavior that impairs autonomous decision-making of a woman about her reproductive health. Yet barely 1% filed medico-legal complaints.

The contrast is staggering. When women feel safe in clinical settings, disclosures are made. But within the legal system, silence prevails. This reveals two linked failures: survivors make disclosures only when they feel safe and institutions rarely register complaints because marital rape is not a cognisable offence.

Survey figures understate the crisis not for lack of victims but because law, stigma and institutional design conspire to erase them.

The structural barriers run deeper. The NFHS interviews only one woman per household and skips the domestic violence module if privacy cannot be ensured. In India's patriarchal context, that guarantee is often impossible. In NFHS-5, about 4% of selected women were dropped from the module because privacy could not be guaranteed – thousands of potential disclosures that were never made.

The measurement gap also reflects an attitudinal gap. Cross-cultural studies find that people view the same act as less “deviant” when the perpetrator is a husband rather than a stranger, with men and Indian respondents especially prone to rationalising the offense.

India’s refusal to criminalise marital rape has created a self-reinforcing system: law does not recognise the harm, so surveys cannot measure it properly, so institutions do not record it and women shaped by culture and fear, do not report it. This manufactured invisibility then becomes evidence for inaction.

"Where's the data?" ask policymakers. The answer: you made it impossible to collect.

Reform requires breaking this cycle on several fronts. Legally, Exception 2 must be removed from the Bharatiya Nyaya Sanhita without carve-outs or dilutions. In measurement, national surveys must ask about specific acts rather than relying on women to label their experience as violence, following methodologies from countries that have successfully captured intimate partner sexual violence.

Culturally, we need public awareness campaigns that challenge the notion of sex as marital duty and affirm consent as fundamental to all relationships.

Several petitions challenging Exception 2 are currently before Indian courts. Public discourse on bodily autonomy and consent has never been stronger. On the International Day for the Elimination of Violence Against Women on November 25, Indians must recognise that violence doesn't become less real because it occurs within marriage – it becomes more dangerous, precisely because law and society refuse to see it.

The question is not whether marital rape exists. The question is how much longer we will build systems designed to make it invisible.

Gajendra Diwedi is a teaching fellow and Karan Babbar is an assistant professor at Plaksha University.

November 25 is International Day for the Elimination of Violence Against Women.