CRIMINALIZATION OF MARITAL RAPE: A STUDY OF LEGISLATIVE SILENCE AND JUDICIAL ACTIVISM

AUTHOR – MANISH KUMAR SAHU* & ABHISHEK MISHRA**

* LL.M, FACULTY OF LAW, SHRI RAWATPURA SARKAR UNIVERSITY

** ASSISTANT PROFESSOR AT FACULTY OF LAW, SHRI RAWATPURA SARKAR UNIVERSITY

BEST CITATION – MANISH KUMAR SAHU & ABHISHEK MISHRA, CRIMINALIZATION OF MARITAL RAPE: A STUDY OF LEGISLATIVE SILENCE AND JUDICIAL ACTIVISM, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 5 (8) OF 2025, PG. 367-372, APIS – 3920 – 0001 & ISSN – 2583-2344.

Abstract

Marital rape—non-consensual sexual intercourse by a spouse—remains a legally sanctioned exception under Indian criminal law, despite being a severe violation of bodily autonomy and human dignity. This research critically examines the legal, constitutional, and social implications of the marital rape exception under Section 63 of the Bharatiya Nyaya Sanhita, which exempts husbands from prosecution for rape committed against their wives. The legislative silence on this issue reflects not only patriarchal inertia but also a systematic disregard for the evolving standards of human rights and gender justice.

Through a doctrinal and comparative legal research methodology, the paper analyses statutory texts, judicial pronouncements, and feminist jurisprudence to assess the constitutionality of this exception. It studies landmark judgments such as Independent Thought v. Union of India and the Delhi High Court’s split verdict in RIT Foundation v. Union of India, highlighting the judiciary’s evolving approach towards marital rape. The study also explores the limitations of judicial activism in the absence of legislative intent and considers the role of the courts in upholding fundamental rights under Articles 14, 15, and 21 of the Indian Constitution.

Drawing on international legal developments, this research compares India’s position with jurisdictions such as the United Kingdom, United States, South Africa, and Nepal—all of which have criminalized marital rape. The comparative analysis exposes the regressive nature of India’s exception and the urgent need for reform in line with global human rights standards, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

The paper concludes that the marital rape exception is constitutionally indefensible and socially destructive, reinforcing gender inequality and legitimizing intimate partner violence. It argues that the criminalization of marital rape is not merely a legal reform but a moral and democratic imperative. To that end, the paper offers specific policy recommendations, including the repeal of Exception 2 to Section 63 BNS, gender-sensitive training for law enforcement, and legal recognition of sexual autonomy within marriage. This research aims to contribute to the growing call for transformative legal change that aligns Indian criminal law with constitutional morality and the rights of women to bodily integrity, dignity, and equality.

Keywords

Marital Rape, Judicial Activism, Criminal Law, Constitutional Rights, Gender Justice, Legal Reform, Patriarchy, Section 63 BNS