- Clips of Kyunki Saas Bhi Kabhi Bahu Thi highlight marital rape issue after 20 years
- Marital rape is not criminalised under Indian law, unlike in 130+ countries
- Domestic Violence Act addresses forced sex in marriage but no criminal rape charges apply
Clips from the latest episodes of Kyunki Saas Bhi Kabhi Bahu Thi have once again gone viral. Nearly two decades after the show drew attention with a storyline on marital rape, former Union minister for Women and Child Development Smriti Irani has returned as 'Tulsi Virani'- this time threatening to kill her grandson Parth for forcing himself on his wife, echoing the moment when she killed her son Ansh for raping his wife.
Across both storylines, one thing remains unchanged - not just in the fictional Virani household, but in Indian law. The husband's sense of entitlement over his wife's consent persists, while marital rape continues to be not a crime.
Outside the television frame in the real India, the petition seeking criminalisation of marital rape is awaiting hearing in Supreme Court for several years, with the Central government taking an official stance against these petitions.
Debate On Marital Rape Not Black And White
Currently, marital rape is not recognised under Indian criminal law.
The Bharatiya Nyaya Samhita (BNS) continues to carve an exception under the law against rape for those in a marriage. Just like the British era's Section 375 of the Indian Penal Code, 186 (IPC), the latest BNS Section 63 says 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.
Internationally, more than 130 countries have criminalised marital rape, recognising that marriage cannot be a defence to sexual violence. However, in India, the debate on marital rape is not black and white.
Supreme Court lawyer Akansha Rai, who has dealt with such cases on ground, while speaking to NDTV said the debate surrounding marital rape is often reduced to the perceived sanctity of marriage. However, the real issue she says is much simpler -- should marriage grant a spouse immunity for an act that would otherwise constitute rape if committed by any other individual? Rai asserts that the answer, in a constitutional democracy, ought to be an unequivocal no.
She also points to jurisprudence emerging from various high courts which have increasingly questioned the constitutional validity of this exception.
"Justice M Nagaprasanna of the Karnataka High Court, while refusing to quash rape proceedings against a husband, made a significant observation that a man is a man, an act is an act, and rape is rape, whether committed by a husband or a stranger," Rai told NDTV.
However, this judgment by high court was later stayed by the Supreme Court and is still pending there.
Senior advocate and activist Abha Singh who has also dealt with such cases, begs to differ on questions of marital rape.
While speaking to NDTV, Singh explained that our current law under the Domestic Violence Prevention Law and other criminal law provisions of BNS is sufficient to deal with such acts of violence against women by spouse. She added that as a lawyer who has witnessed how laws are being misused in court, she would not suggest criminalising marital rape.
Singh explained that when such a case would reach trial court, it will become very difficult to prove that what happened behind the closed doors between a married couple. She added that currently POCSO law and the law against rape on false pretext of marriage are the most misused in the country.
How such cases are dealt with currently
Currently, if a wife wants to report such an offence of abuse she can do it under the Domestic Violence Act and other penal law provisions that deals with sections of crime like assault, homicide, etc.
Advocate Akanksha Rai points out that apart from regular penal provisions against violence, Indian law itself acknowledges that non-consensual sexual intercourse within marriage can amount to an offence in certain circumstances.
"Section 67 of the Bharatiya Nyaya Sanhita criminalises sexual intercourse by a husband with his wife during separation without her consent. If the law recognises that consent is indispensable during separation, it implicitly acknowledges that marriage itself cannot be treated as irrevocable consent," advocate Rai asserts.
Rai further adds that under Protection of Women from Domestic Violence Act recognises sexual abuse as a form of domestic violence.
"Courts have repeatedly accepted that forced sexual intercourse by a husband amounts to sexual abuse entitling the wife to civil remedies.
This raises an obvious question: if the law recognises forced sexual intercourse within marriage as "sexual abuse", why should the same conduct escape criminal liability merely because the parties continue to reside together?" advocate Rai asks.
Rai told NDTV that in one matter she was appearing in, the allegations were so disturbing that the police, upon reading the complaint, registered an FIR under the offence of rape.
"The investigating officers themselves found the allegations to disclose every ingredient of the offence. However, once the matter reached the court, despite expressing concern over the horrifying allegations, the court was constrained to drop the charge of rape solely because the accused happened to be the complainant's husband and the case fell within the statutory exception," Rai explained.
Rai who advocates for a law criminalising marital rape, said in this particular case the conduct of the husband remained identical to that of a rapist. The trauma of wife was identical to a rape survivor. Only the legal relationship between the parties changed.
Government's Take On Marital Rape
The 49-page affidavit by the Central government filed in October 2024 is the first time where it has opposed the removal of the exception for marriage under BNS Section 63 which criminalises rape.
The reply filed by the Central government said while the husband has no right to deprive a woman of her fundamental rights, describing this violation as "rape" under the "institution of marriage can be arguably considered to be excessively harsh and therefore, disproportionate".
It said that marital rape should be made illegal and criminalised as "a woman's consent is not obliterated by marriage... However, the consequences of such violations within marriage differ from those outside it."
The government was of the view that other provisions in the IPC and the Protection of Women from Domestic Violence Act, 2005 are equipped to "ensure serious penal consequences for such violations".
The Issue Before Supreme Court
The legal challenge to the marital rape exception has travelled across multiple courts over the last decade.
In 2017, the Karnataka High Court heard a case in which a husband accused of rape and cruelty invoked the exception under Section 375 of the Indian Penal Code, arguing that sex within marriage cannot amount to rape.
In February 2022, the High Court rejected his plea, calling the exception regressive and holding that it violated the right to equality, relying on the Justice JS Verma Committee's (formed post Nirbhaya case that shocked the country) recommendation to delete it.
The husband then moved the Supreme Court, which put a freeze on the High Court's order in July 2022.
Around the same time, the Delhi High Court delivered a split verdict on petitions challenging the exception in rape law for marriage - one judge striking it down as unconstitutional for violating bodily autonomy, and the other upholding it as part of the "institution of marriage."
The matter, along with other petitions including one filed by activist Ruth Manorama, was later clubbed in the Supreme Court and remains pending.
In 2023, parliament passed the Bharatiya Nyaya Sanhita retaining the same marital rape exception.
In 2024, the Union government formally opposed striking it down, arguing that while non-consensual sex within marriage should be criminalised, treating it as "rape" would be disproportionate given the institution of marriage and existing remedies under domestic violence and criminal law provisions.
