Opinion Shashi Tharoor writes: The marital rape exception in criminal law is a colonial relic. It needs to go
Resistance often stems from a deeply ingrained, old-fashioned patriarchal attitude — the notion that a woman’s identity, especially within the confines of marriage, is secondary to that of her husband and the sanctity of the family unit
We must recognise that violence, regardless of who the perpetrator is or their relationship to the victim, is a crime. (Illustration by C R Sasikumar) 
The foundational promise of India’s democracy rests on the commitment to equality, dignity, individual agency, privacy and bodily autonomy for all its citizens. The Constitution provides these; the Supreme Court has repeatedly reaffirmed them. Every Indian should be able to take these rights for granted.
Yet, a glaring anomaly persists that undermines these very principles for countless women: The marital rape exception in the Indian Penal Code (IPC), now carried over in Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023. This exception, which exempts a husband from punishment for engaging in non-consensual sexual intercourse with his wife who is not under 18 years of age, is a tragic anachronism — a stubborn remnant of colonial-era patriarchal mindsets that view a wife as her husband’s property. It is a legal and moral failing that we must rectify.
In the ongoing session of Parliament, I have introduced a private member’s Bill in the Lok Sabha to remove this archaic provision. I did so because the continued failure to criminalise marital rape leaves married women legally defenceless. The arrogant presumption that marriage voids the necessity of consent directly undermines a woman’s fundamental rights to dignity, safety, and bodily autonomy, all guaranteed under Article 21 of the Constitution.
The urgency of this is validated by alarming national data. The National Family Health Survey-5 (NFHS-5) reveals that 83 per cent of women aged 18 to 49 years who faced sexual violence named their current husband as the perpetrator. The pervasive nature of sexual violence within marriages highlights the inadequacy of our legal system. The marriage licence was never intended to be a waiver of the right to say no. Very often, separated husbands come by to assert their conjugal rights by force. For too many women, home is not a sanctuary, but a space of potential violation, legally sanctioned by a patriarchal statute.
The demand for criminalising marital rape is not new; it has been strongly supported by authoritative legal bodies within India. The Justice Verma Committee Report (2013), in the aftermath of the horrific Delhi gang-rape case, unequivocally recommended the removal of the marital rape exception. The committee recognised the inherent contradiction in a law that aims to protect women from sexual violence yet creates a loophole for the most frequent perpetrators — their husbands. A wedding ring does not turn a bedroom into a battlefield, nor a partner into property.
Furthermore, international treaties and conventions mandate this reform. India is a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which requires state parties to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations. The continued exception for marital rape is in direct violation of this commitment. Article 253 of the Constitution empowers Parliament to legislate in alignment with international conventions, and Article 51 enjoins the state to respect international law. These constitutional provisions clearly mandate the removal of the marital rape exception to uphold both domestic and international commitments to human rights.
The law’s core error lies in the assumption that the “sanctity of marriage” provides an all-encompassing grant of sexual access. This is fundamentally wrong. Consent is a fundamental human right, regardless of marital status. Allowing a husband to force sex upon his wife converts “I do” into “you must”. Legal protection for a husband who rapes his wife sends a dangerous message: That a woman’s control over her body is surrendered upon taking her vows.
Marriage should be an institution of love, companionship, and choice, not a licence for violence. What should be a partnership grounded in mutual respect, consent, and love is violated by compulsion and violence. The screams of women victims should not be stifled by the weight of the law.
The resistance to this reform often stems from a deeply ingrained, old-fashioned patriarchal attitude — the notion that a woman’s identity, especially within the confines of marriage, is secondary to that of her husband and the sanctity of the family unit. We must overcome this mindset in a modern society. We need to give women the right to be able to protect their own bodily autonomy — their own agency to say no.
Concerns are often raised that criminalising marital rape will lead to misuse of the law, creating a new avenue for vengeful wives to file false cases. While the potential for misuse in any law cannot be entirely dismissed, it cannot be a justification for denying justice and safety to genuine victims. If we accept the possibility of misuse as a reason not to legislate, then no law protecting women — from domestic violence to dowry prohibition — could ever be enacted. We must tackle misuse through robust investigation and judicial procedures, not by denying a fundamental right to protection from sexual violence.
The time for deliberation is long past. The continued existence of the marital rape exception is a national shame and a grave injustice. It is a provision that stands contrary to our constitutional values, our international obligations, and our moral compass.
We must recognise that violence, regardless of who the perpetrator is or their relationship to the victim, is a crime. By removing the marital rape exception from the Bharatiya Nyaya Sanhita, we will take a monumental step towards restoring a woman’s agency over her own sexual rights within marriage and ensure dignity for all individuals, truly embodying gender-based equality in India’s society.
I was shocked when a succession of women ministers feebly defended the male-majority cabinet’s view on this question and allowed the marital rape exception to stand. We should instead stand up for justice, consent, and the fundamental human rights of every married woman. Let us pass this bill and bring our laws into the 21st century.
I have done my part. It is now time for women to rise and speak up for their own sisters.
The writer is MP, Thiruvananthapuram, Lok Sabha, and chairman, Parliamentary Standing Committee on External Affairs
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