The custom of marriage, which is anthropological, cultural, and legal, creates a socially accepted rights and responsibilities between people. Marriage serves as the foundation for the acceptance of sexual relationships in many cultures. However, there has always been ambiguity in the law around physical hostility and sexual misconduct in marriages. “Forcible sexual assault or violence by one spouse towards the other” is the definition of Marital Rape. Although numerous cultures have historically viewed the establishment of a sexual relationship between a married couple as a “right,” the scope of consent becomes just as significant as it is for nonmarried people. Women are primarily, though not alone, victims of marital rape. Chronic violence is often perpetuated by the couple’s abusive relationships, which tend to develop a vicious cycle. This has been ignored in literary works and regulations and for ages, “marriage” has been utilised as a regular exemption or defence in situations of sexual violence. Additionally, this has resulted in a decrease in seeking assistance, lingering trauma, and the negation of the experiences of victims of marital rape.
International conventions and views opposing intimate partner and sexual abuse in marriages have grown since the 20th century (more specifically, the prevalence of sexual assault against women). As of 2019, 150 nations currently have laws that acknowledge marital rape as a criminal offence. However, the number of countries that explicitly criminalize marital rape in their penal codes is reported as 52 by UN Women. Marital rape is not considered a crime by the law or culture in many countries, including India. Even in nations that consider rape as a crime and have laws against it, the victim and the offender are immune from the law’s application if they are married. The “marital rape exception clause” is a common term for this. Because of the progress made in the area of gender equality, the first two arguments are no longer applicable in the current setting. The initial defence was based on the notion that the wife was her husband’s subordinate. Women had no rights within the marriage because they were their husbands’ property. Since the husband was the woman’s master and had authority over her body, it would be impossible to imagine a husband raping his wife in such a situation. This rationale was accompanied by the existence of the unity’s hypothesis. This hypothesis was based on the notion that a woman’s identity blended with her husband’s after marriage. As a result, the law did not grant the married lady a personality apart from her spouse.
History of the Marital Rape exception in the Indian context
India is among the 36 nations that have yet to make marital rape a crime. The “Hindu Centre for Politics and Public Policy” claims that rather than using legal arguments, mediation and compromise are frequently used to resolve legal disputes regarding “consent” in cases of sexual abuse within marriage. According to some, marriage’s “obligatory sexual interaction” clause violates both Article 14 (Right to Equality) and Article 21 of the Constitution. In order to improve women’s safety and protection, India has passed laws such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and the Protection of Women from Domestic Violence Act, 2005. Appeals from numerous women’s organisations, human rights associations, and ultimately the Justice Verma Commission’s recommendation to criminalise marital rape have added fuel to the fire following the inhumane Nirbhaya case in Delhi and the Criminal Law (Amendment) Act (2013)’s failure to address the problem.
The earstwhile Indian Penal Code (now Bharatiya Nyaya Sanhita, 2023) in §375 (Section 63 of BNS) criminalises the offence of rape. The concept of “rape” is broad and include both sexual relationships and other forms of sexual penetration, such as oral sex. The application of this provision to sexual activities or sexual intercourse between a husband and wife is, however, excluded in Exception 2. Therefore, if a husband rapes a woman, she has no legal recourse under Indian law. There is no explanation given in Exception 2 of §375 of the IPC (the “exception clause”, now Section 63 of BNS, 2023) for why a man and his wife’s sexual interactions or activities are not considered rape. Given that consent is the main topic of this section, it is plausible that an unquestionable presumption of consent applies in situations when the victim and the offender have a marital relationship.
The Supreme Court in Independent Thought vs Union of India, held that, “Constitutionally female have equal rights as of male and no statute or act can take away those rights from females and if such statute or an act is passed regarding the same, it should be declared as null and void”. According to the Gujarat High Court, “The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanised treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalised”.
Judicial Endorsement of the Marital Rape Exception: A Critical Look at Gorakhnath Sharma vs State of Chhattisgarh
In India, judicial reactions to marital rape have remained mainly uneven, despite growing societal and legal discussion about the issue. Although courts have periodically acknowledged the seriousness of the problem, the judiciary has frequently been constrained by the marital rape exclusion provision. The institutional immunity granted to sexual abuse within marriage has been reinforced by a series of decisions that have resulted in either diluted or completely denied justice for victims. The February 2025 ruling in Gorakhnath Sharma vs. State of Chhattisgarh is a recent case that has generated new discussion in this area. In addition to highlighting the shortcomings of existing legal measures, the case emphasises how urgently judges must have courage when interpreting laws in accordance with constitutional principles. This case exemplifies how the marital rape exemption serves to protect wrongdoers under the pretence of legitimate marriage. A brief overview of the case is as follows:
Facts: The present case was a Criminal Appeal by the husband of the victim under Section 374(2) of CrPC which was filed against the judgement of conviction passed by the Additional Sessions Judge. In summary, the victim’s husband, who was employed as a driver, was the appellant. The appellant physically harmed the victim and engaged in non-consensual unnatural sexual intercourse with her on the evening of December 11, 2017. Due to severe agony from the injuries sustained during the unnatural sexual encounter, she was later hospitalised to Maharani Hospital. She gave a dying declaration to a magistrate while she was in the hospital, claiming that she had suffered because of her husband’s abuse on her. The police recorded her statements and began an inquiry after she tragically died on December 11, 2017, not long after the declaration was made. Gorakhnath Sharma was accused under several sections of the Indian Penal Code (now BNS, 2023) after she passed away, including Sections 376 (now Section 64 of BNS), 377 (unnatural offences), and 304 (penalty for culpable homicide not equal to murder, now under Section 105 of BNS). On February 11, 2019, Gorakhnath was found guilty by an Additional Sessions Judge who heard the case and examined the testimony of several witnesses. For each of the offences, he received a ten-year harsh jail sentence, along with fines for nonpayment. Therefore, the current criminal appeal was filed, stating that the conviction was based mostly on the victim’s untrustworthy dying declaration and that there was insufficient evidence against him.
Issues raised
Whether crimes under Sections 376 (now Section 64, BNS) and 377 of the Indian Penal Code apply when a husband and wife engage in sexual conduct together?
Whether a “dying declaration” by itself enough to convict someone in the absence of supporting evidence?
Whether it is possible to use Section 304 IPC (culpable homicide, now Section 105, BNS) in the absence of particular findings outlining the components of the offence?
Whether in circumstances of sexual actions between spouses, do revisions to Section 375 IPC (now Section 63, BNS) establish a legal repugnancy with Section 377 IPC?
Judgement by the Hon’ble High Court, Chhattisgarh: A single-judge bench of justice Narendra Kumar Vyas overturned the accused’s conviction, clearing him of all charges under Indian Penal Code (IPC) sections 376 (rape, now Section 64, BNS), 377 (unnatural sex), and 304 (culpable homicide, now Section 105, BNS). The court also ordered the accused’s rapid release from custody.
In order to highlight the ongoing legal impunity granted to marital rape, the high court ruling referenced Exception 2 under Section 375 of the IPC (now Section 63, BNS), which prevents a husband from criminal prosecution for sexually assaulting his wife. Justice Vyas held that, “It is quite clear that if the wife is not below 15 years of age, then any sexual intercourse or sexual act by the husband with his wife cannot be termed as rape… As such, the absence of consent of the wife for an unnatural act loses its importance”.
Shrabana Chattopadhyay is Assistant Professor, IEM’s International Institute of Juridical Sciences (IIIJS), University of Engineering and Management Kolkata.
The Supreme Court’s 2017 decision in the Independent Thought case, which interpreted the “marital rape exception” to conclude that sexual contact between a man and his wife under the age of eighteen is rape and is punishable by law, is undoubtedly in conflict with the reliance on the 15-year age limit. But under Section 63 of the new Bharatiya Nyaya Sanhita, 2023, this 15 year has been replaced by 18 year.
Critical Analysis of the judgement
The ruling in Gorakhnath Sharma vs. State of Chhattisgarh is a prime example of the judiciary’s ongoing reliance on colonial-era legal frameworks, including Exception 2 to Section 375 IPC, which shields spouses from prosecution for marital rape. On the surface, the High Court’s ruling would seem to be in line with the law, but when viewed through the prisms of gender justice, constitutional morality, and developing consent laws, it presents significant issues.
First, the majority ignores the wider ramifications of the Supreme Court’s decision in Independent Thought v. Union of India, which established that marriage cannot be a license to exploit by reading down the marital rape exception for minor spouses. The case’s interpretive spirit—that the “right to consent and bodily autonomy” endures even inside a married bond—is evident even though it dealt directly with child marriage. The archaic idea that a woman’s sexual autonomy is extinguished by marriage is maintained by the Chhattisgarh High Court, which treats lack of consent as irrelevant in the case of a wife who is older than 15.
Secondly, the unequivocal assertion made by the Court that “the absence of consent of the wife for an unnatural act loses its importance” is also quite concerning. It ignores the fact that spousal immunity was never specifically acknowledged by Section 377 IPC, which made “unnatural offences” a crime until it was recited in Navtej Singh Johar v. Union of India (2018), in context of homosexuality. In essence, the Court confuses Exception 2 of Section 375 with Section 377 without properly examining whether marital exemption extends to non-consensual oral or anal intercourse, which are commonly denounced as abuses of human dignity when performed under duress. Furthermore, a crucial piece of evidence—the wife’s dying declaration—was disregarded too hastily. Numerous times, courts have ruled that if a dying declaration is deemed trustworthy and voluntary, it may serve as the only foundation for conviction. Given her death shortly after, the victim’s unambiguous declaration in this instance connecting the accused’s act to her physical trauma should have been subject to more careful court review.
Last but not least, the ruling ignores the fundamental rights guaranteed by Articles 14, 15, and 21 of the Constitution namely, equality, non-discrimination, and the right to a dignified life. The Court essentially excludes women from the protection of criminal law by permitting their married status to supersede their right to consent.
In conclusion, the High Court’s decision highlights the obvious weakness in Indian criminal law concerning rape in marriage. It serves as an unsettling reminder that judicial decisions can perpetuate the very disparities that the law aims to eliminate when it is not consistent with constitutional principles. In order to balance interpersonal relationships with the fundamental right, a right that shouldn’t disappear at the altar of marriage, the case demands immediate legislative and judicial action.
