Should marriage be a licence to rape?

Panchali Ray: Zakia, could you speak about your experience working with women who have faced this form of violence? What has your journey been like, and what insights have emerged from your work?

Zakia: Rape is a horrific crime against women—and marital rape, in many ways, is even more horrifying. I say this with sadness because it’s unfortunate that we even need to compare degrees of such violence. But marital rape means living permanently with your rapist—being raped again and again, with no escape. We must recognise that many women in India—and across South Asia—are trapped in marriages that are effectively long dead. Women often continue in these marriages not out of choice, but because of a lack of alternatives, and because our societies are so deeply patriarchal and male-dominated.

I’ve heard this from scores of women who come to us, particularly in cases of separation or divorce. Among the top reasons women cite for wanting to leave a man, you will hear two or three recurring themes: general violence, dowry harassment, lack of financial support—and very often, sexual violence. Just imagine the plight of a woman in such a situation. Not only is she living with someone she doesn’t love—or who doesn’t love her—he is unkind, cruel, and violent, and yet, he is meticulous about asserting his “right” to sex simply because he is the husband. She must endure this violation of her bodily autonomy day after day. She is dehumanised—and yet, she must pretend that all is well. She must continue to perform the social roles and rituals expected of a “wife,” even as her very identity is reduced to a sexual object or commodity.

This kind of mental agony and trauma is beyond words. The tyranny of being forced to comply, to submit, to remain silent—it’s a pressing, urgent issue that we cannot ignore. As you rightly pointed out, Panchali, marriage is assumed to come with implied and infinite consent, and this is incredibly problematic. Even in romantic relationships, there are days when one partner may not want intimacy. But in a marriage—especially for a woman—there is no space to say no. And worse, there is no one to speak to about it. Not her parents, not her family. She is forced to endure this atrocity silently, every single day.

Speaking specifically about Muslim women, we must remember that Muslim marriage is a social contract. The nikahnama defines the rights and obligations of both parties. But in reality, even that basic contract is often inaccessible to women—many don’t even have a copy of their own nikahnama. In practice, the marriage becomes defined by the man’s interpretation of his rights. The common mindset is: “I am the husband, therefore my wife must be sexually available to me.” We’ve met so many women who are so exhausted, so broken, that they don’t even want to talk about alimony or recovering their possessions. They simply say, “Mujhe chhod dijiye. I just want to be free of this man.” That’s how unbearable their lives have become.

This is total dehumanisation—and our society and our institutions must wake up to this reality. But more importantly, our social consciousness needs to shift. Marriage is a relationship between equals. Something as intimate as sex cannot be about power or entitlement. It must be rooted in mutual desire, respect, and consent.

This is the larger debate we need to have—about consent, about mutual respect, even within a legal marriage. Being married does not mean being enslaved. Even in loving marriages, there are moments when intimacy doesn’t feel right—and, of course, there are many supportive and respectful husbands out there. But sadly, in our experience, those are the exceptions—not the norm.

Panchali Ray: I think a very important point you’ve raised is the dehumanisation of women within marriage, and the myth that marriage is inherently a consensual space. We must remember that marriage is, at its core, a contract—and contracts require mutual respect and consent.

I’d like to take this conversation forward by exploring both the social and legal dimensions of this issue. What kinds of legal reforms are required? What are the structural and cultural challenges? To speak to that, I’d now like to invite Saumya to share her thoughts—on both the social implications and the legal framework surrounding marital rape.

Saumya: Let me begin by adding to the powerful points Zakia has already outlined so eloquently. I recently came across a short but deeply moving summary of a woman’s life published in The Hindu, and I’d like to read it aloud. It says:

“At 42, Asha (name changed) has spent 24 years of her life dreading the next assault. Sitting at a counseling center in a Mumbai suburb, she vividly recalls each episode of violence—being slapped, beaten with a stick, sexually abused in private, and verbally abused in public. She says she clings to her married status because it ensures a roof over her head: a one-room kitchen flat in her husband’s name. Having studied up to Class 10, she’s taken on odd jobs, but says she cannot fend for herself—her earnings are meager. Nine years after she first lodged a domestic violence complaint, Asha landed in the emergency room of a public hospital with injuries to her private parts. That’s when doctors recognized it as sexual assault. Yet, at the police station, it was dismissed as a matter between husband and wife. No case was registered.”

I wanted to share this because it so clearly echoes what Zakia has already said. Imagine: 24 years of living in fear, dreading the next assault. Can we even begin to grasp what that does to a person?

As Zakia rightly pointed out, these women are not just enduring violence—they are expected to maintain normalcy, to cook, clean, entertain guests, and fulfill the role of a wife while living with someone who repeatedly rapes and abuses them. That is the level of cruelty and psychological trauma we’re talking about. It’s important to understand that marital rape is a subset of intimate partner violence—which includes abuse, aggression, and coercion in a romantic or intimate relationship. This can happen with a current or former spouse, or even with a dating partner. Marital rape is one form of this violence, where sexual acts are forced without consent or free will.

What’s especially significant about marital rape is that it’s often not committed through physical force alone—but through coercion, intimidation, threats, or manipulation. For instance: “If you don’t agree to have sex with me, I’ll do X, Y, Z…” This psychological control is a form of violence just as damaging as physical assault.

Global research has identified six categories of women who are particularly at risk of marital rape:

1. Women in physically violent intimate relationships

2. Pregnant women

3. Women who are ill or recovering from surgery

4. Women separated or divorced from their spouse

5. Women whose rapists marry them to avoid prosecution

6. Women married to domineering men who treat them as property

The fifth category is especially relevant in India. Just a few days ago, a court (I believe it was the Allahabad High Court, though I could be mistaken) granted the accused three months to marry the victim, essentially offering him a way to avoid punishment. Despite the Supreme Court coming down strongly against such rulings, they still happen—often at bail hearings or other procedural stages. This false idea that marriage can redeem or neutralize sexual violence is deeply flawed. You cannot take a violent situation and magically expect marriage to introduce romance, love, or understanding. That’s a myth.

The sixth category—women married to domineering men who consider them their property—probably covers 90 to 95 per cent of Indian marriages, if we’re being honest. This aligns with what Zakia said earlier: yes, some husbands are respectful and supportive, but the majority are not. Even our own national data supports this. The National Family Health Survey (NFHS) reports that over 90 per cent of married women have experienced some form of sexual violence within marriage. And by sexual violence, we don’t mean only intercourse—it includes a range of non-consensual acts.

I’ll pause here for now. Panchali, would you like me to speak about the legal framework at this point, or would you prefer we come to that a bit later? I’m happy either way.

Panchali Ray: We can come back to the legal aspects in a moment. I think what you’ve just foregrounded is so important—that marriage, in many cases, becomes an institution grounded in male entitlement rather than a democratic, consensual partnership based on mutual respect.

Surely, any kind of entitlement—especially one-sided—undermines the very idea of marriage as a space that nurtures love, intimacy, and equality. So now, I’d like to steer the conversation toward the question of legal reforms. Zakia, could you share your thoughts on what steps need to be taken to eliminate marital rape? What kind of legal changes do we need—whether in terms of jurisdiction or implementation?

Zakia: First and foremost, we need to recognize that rape or sexual violence is a crime, no matter where it occurs—whether within marriage, outside of marriage, in a relationship, or in a live-in arrangement. It must be treated as such, without exception. So before we even talk about legal reform, I believe we need to challenge the mindset that society holds toward women and girls. It often feels like we’re asking for too much, but women are not just reproductive vessels. Their role in society goes far beyond being child-bearers.

This mindset—that women exist to satisfy the sexual needs of men—is at the heart of many of our cultural norms around marriage, and it cuts across religious and ethnic communities. There’s a deeply embedded belief that a girl or a woman is a soft, sexual object, placed on this earth for a man’s pleasure. Marriage then becomes an arrangement of ownership—a system to bind one man to one woman. It’s a problematic and deeply patriarchal view.

And this idea of ownership is reinforced by cultural and religious norms, which continue to be hegemonic and male-centric. These norms give legitimacy to the belief that a husband has a right over his wife’s body, which is absolutely unacceptable. We must urgently recognize the bodily autonomy of every individual, including women and girls.

Another vital aspect is the need for comprehensive sex education. This needs to begin in schools, at least by high school and college. Our society attaches a kind of voyeuristic shame and thrill to anything related to sex, and this needs to change. Our popular culture, too, plays a role—the endless portrayal of men stalking or chasing women, and eventually “winning” her over, reinforces toxic behaviors.

Our films, songs, literature—they’re filled with these narratives, which normalize harassment and call it romance. This is not romantic—it’s criminal. So yes, legal reform is urgently needed. But even if, by some miracle, marital rape is criminalized, society will take time to accept it. Because the mindset persists: “Boys will be boys”, and girls must be submissive, quiet, and yielding. This absurd notion ignores the simple truth that both partners—man and woman—have equal rights in a relationship, including the right to say no.

I was honestly shocked by the Central government’s stand in the marital rape case in the Supreme Court. To say that criminalizing marital rape would “destabilise the institution of marriage” is appalling. Are we expected to protect marriage at the cost of our daughters’ dignity and safety? What kind of thinking is that? This attitude violates the constitutional principles of gender justice and equality. It’s essentially granting immunity to criminal behavior, and it must be corrected.

But more than anything, society needs openness about sex and sexual autonomy. Just like we accept that a woman has the right to education, work, leisure, she must also be seen as having the right to sexual agency. Sex is a natural instinct between two people. There’s no shame in it—but it must always be consensual.

Even in a marriage or live-in relationship, a person must be free to say “not today”. That right to say no must be protected. I want to add a more emotional note, if I may. Panchali and Soumya, I am horrified by the cultural concept of “suhagrat”—that wedding night tradition we’ve seen so often in old Hindi films. When I first understood what it really meant, I was horrified. Think about it: most women are married off to complete strangers. They’ve never spoken to the man, never interacted with him—and suddenly, they’re expected to be intimate on the first night? This is nothing short of rape by another name. And we’ve romanticized this idea so much—it infuriates me. It’s horrifying.

Coming back to the legal angle: if the government wants to bring in a Uniform Civil Code, how can it ignore the crime of marital rape? What is the point of having any common code if gender justice is not at its core? Look at the Uttarakhand Uniform Civil Code—there is no mention of marital rape anywhere. What does this say about the official policy on women’s rights? We keep hearing about gender justice—but how can there be justice if women’s voices go unheard, especially the voices of ordinary women—the ones living this reality every day? The truth is: it’s ordinary women who are demanding change, because they are the ones suffering in silence, enduring abuse for years, even lifetimes. But who is listening to them? Where is the mechanism to acknowledge their pain and deliver justice? So yes, in conclusion, we need legal reform, but equally, we need a massive shift in social attitudes and cultural thinking.

Panchali Ray: I have to say—I disagree with your earlier point that we should avoid bringing emotions into our conversations. I strongly believe it is our anger, as women and as feminists, that is propelling these conversations forward. Without it, we’d simply give up. And it’s not just anger—it’s also our vision of a different world, one that is filled with love, intimacy, and joy. That’s what we’re striving toward. And in that pursuit, we’re beginning to question traditional institutions of marriage—institutions built, in many ways, on sexual exploitation and inequality.

We want new ways of living, loving, and coexisting. And while we’ve spoken a lot about social reform—gender norms, cultural violence, and sanctioned abuse—I’d like us to focus now more specifically on legal reform. Saumya, could you speak to that?

Saumya: Sure. Before we get into the conversation on legal reform, I think it’s important to understand the legal origins of the marital rape exception—which, as you mentioned in your introduction, Panchali, has a long history.

Under Section 375 of the Indian Penal Code—now mirrored in the Bharatiya Nyaya Sanhita (BNS)—we have an exception at the bottom of the section which clearly states that sexual intercourse by a man with his own wife is not considered rape. So where does this exception come from? To understand how to counter it legally, we must understand its colonial roots. The marital rape exception originates from a British religious and legal framework—specifically the “Doctrine of Coverture”, which in turn was influenced by the “Doctrine of One Flesh.”

According to that idea, once a man and woman married, they became “one flesh.” But, in a patriarchal society, that “one” was clearly the husband. The wife essentially ceased to exist as an individual legal entity. She was considered subsumed within her husband’s identity—she couldn’t own property, couldn’t enter into contracts, and had no legal autonomy. Sexual consent, too, was presumed to be perpetual and irrevocable. The wife was seen as giving unconditional consent to intercourse in exchange for the husband’s “protection.” This was the logic used to exclude marital rape from the legal definition of rape when the Indian Penal Code was codified in 1860.

Now, people argue that Indian women already have alternative legal remedies—they can file cases under the Domestic Violence Act, seek divorce, or pursue charges of cruelty under Section 498A of the IPC. But the point is this: as long as marital rape remains exempt under criminal law, the legal system is sending a message that a woman’s consent is irrelevant within marriage. That means a husband is legally entitled to unrestricted access to his wife’s body, which directly violates her constitutional rights to equality, dignity, and life under Articles 14, 15, and 21 of the Constitution.

Let’s look at the main arguments that have been made in courts and by the government:

1. Threat to the institution of marriage

The argument goes: removing the marital rape exception will destroy the institution of marriage. But what kind of marriage is it if one partner is being routinely traumatized—physically, mentally, and emotionally? What are we preserving if not a hollow shell?

2. Socio-economic unsuitability

This claim says that India has poverty, illiteracy, and religious sensitivities, so we are not ready for such a law. But does poverty grant anyone the license to rape? Does illiteracy justify abuse? The National Family Health Survey already shows that over 95 per cent of married women report having faced sexual violence. So clearly, this issue is very real—and very Indian.

3. Implied consent within marriage

This argument assumes that marriage itself equals consent. But the Justice Verma Committee in 2013 firmly rejected this, stating:

“Rape is rape, irrespective of the relationship between the perpetrator and the victim.”

Consent must be present every time, in every instance. Marriage cannot override bodily autonomy.

4. Fear of misuse of law

This is perhaps the most common argument—that women will “misuse” the law out of vengeance or malice. But global evidence suggests otherwise. In countries where marital rape is criminalized, reporting rates remain very low. Women are not rushing to file false cases—because the trauma of speaking out is real. This fear of misuse should not stand in the way of justice.

Now, in terms of legal developments:

● The Justice Verma Committee (2013) clearly recommended removal of the marital rape exception, but Parliament did not act on it.

● In 2022, the Delhi High Court heard the RIT Foundation vs Union of India case. Two judges delivered a split verdict:

● Justice Rajiv Shakdher declared the exception unconstitutional.

● Justice C. Hari Shankar disagreed, saying it was for the legislature, not the judiciary, to decide, given India’s social and cultural context.

● The case is now pending in the Supreme Court (Hrishikesh Sahoo vs Union of India), where the government has again opposed removing the exemption, asking the Court to respect the so-called “legislative wisdom.”

In the meantime, various High Courts have taken contradictory positions:

● Gujarat, Karnataka, and Uttarakhand High Courts have all issued differing judgments.

● A particularly disturbing case was recently heard in the Chhattisgarh High Court, which I wrote about in The Wire. In this case, the husband inserted his hand into his wife’s anus, causing severe bleeding, leading to her death.

And yet—he was acquitted of rape, acquitted of culpable homicide, and all other charges. This sends a chilling message: that no matter how violent the act, as long as the perpetrator is the husband, it is not legally considered rape. That is where we are right now. And that is why this issue demands urgent attention—not just from courts, but from civil society, lawmakers, and all of us.

Panchali: Child marriage is prohibited by law, yet it continues to happen in South Asia, including India. Does marital cohabitation between a child couple amount to marital rape?

Saumya: The answer is yes. Until a few years ago, the marital rape exemption applied even when the wife was as young as 15 years old. That meant sex with your 15-year-old wife was not considered rape under Indian law.

However, this changed with the Independent Thought judgment by the Supreme Court in 2017. The Court identified a conflict between two laws: the marital rape exemption in the IPC and the Protection of Children from Sexual Offences Act (POCSO). POCSO defines any sexual activity involving a person under the age of 18 as non-consensual by default. But under the IPC, marital sex with a wife aged 15–18 was not considered rape. So, the Supreme Court corrected this inconsistency, and the marital rape exemption no longer applies to wives under the age of 18. This means that any sexual activity with a child bride—under 18—is considered statutory rape, regardless of marital status. Now, under the Prohibition of Child Marriage Act, the marriage itself is considered voidable, and it penalizes the parents and guardians, not the child. But from a criminal law standpoint, the sexual act itself is rape under POCSO if the girl is below 18.

I hope that helps clarify the legal position.

Zakia Soman: What is the age of consent, especially when it comes to consensual relationships between two minors? Because that’s another layer to this. What happens if both parties are underage—say, 16 or 17—and involved in a consensual relationship? The law often ends up criminalising the boy in such cases.

Saumya: When two minors are involved in a consensual sexual relationship, unfortunately, the law still treats it as a criminal offence, especially for the boy. Under POCSO, any sexual act involving someone under 18 is considered non-consensual by default, even if both partners are minors and even if the relationship was voluntary.

But research and global evidence show us that adolescents between 15 and 18 years are in a stage of sexual exploration, and many engage in mutually consensual relationships. Some countries address this through what’s called a “Romeo and Juliet clause,” which allows for consensual sexual activity between adolescent minors, as long as the age difference is small—say, one or two years. Unfortunately, Indian law does not make that distinction. All children under 18 are treated as a single, homogeneous category, which doesn’t reflect social reality.

This criminalisation becomes especially problematic when the relationship is genuinely consensual. The boy ends up being prosecuted, even though there was no coercion or abuse. This also brings us back to the question of power—something we touched upon earlier when discussing marital rape. Someone in the chat asked whether marital rape can happen by either partner.

Technically, yes—it can happen in either direction. But we must remember that in most heterosexual marriages, especially in India, there is a clear power imbalance. So while the law should be gender-neutral, the social context demands that we pay attention to who holds more power in the relationship. And in most cases, that’s the husband.

Panchali Ray: One recurring issue is around the accusation of false cases. For instance, what about false allegations? If marital rape is criminalised, how will we prove whether it was consensual or not? Won’t the law be misused?

Zakia: This idea of “false cases” has become a sort of bogeyman in our society—used time and again to deny justice to women and girls. Let’s look at the example of dowry laws. Even though dowry is illegal, a huge number of marriages in India still involve dowry. Yet only a tiny fraction of those cases ever make it to court—maybe 4 per cent. And out of those, only 1 per cent to 1.5 per cent result in conviction.

So where’s the epidemic of false cases? When we look at the data from NFHS and other government sources, we find that the real problem is not false reporting—it’s underreporting. Thousands—maybe lakhs—of women suffer in silence and never file a case at all. This obsession with false cases is often a tool of patriarchy, meant to preserve the status quo and discourage women from coming forward. And let’s be honest—why is the concern always about the man being falsely accused, rather than about the woman being raped, violated, and silenced?

Of course, any law can be misused, but that doesn’t mean we scrap the law. The possibility of misuse should lead us to design better safeguards, not deny protection to millions of vulnerable people.

Panchali: I often wonder—why is it that nobody raises these questions about false allegations when we’re discussing crimes like theft or murder?

Saumya: Can I just add to that? I just want to read from the Bharatiya Nyaya Sanhita, our latest criminal code. It contains several sections that deal with false evidence:

● Section 227: Giving false evidence

● Section 228: Fabricating false evidence

● Section 229: Punishment for false evidence

● Sections 230 to 233: Cover various aspects such as threatening someone to give false evidence, fabricating evidence to procure conviction, using evidence known to be false, and so on.

In addition to all of this, we also have a section on perjury—which means that if you give false testimony in a court of law, you can be criminally prosecuted. So we already have enough legal provisions in our criminal law to deal with false or fabricated cases. We do not need to be overly worried about the misuse of the law when it comes to protecting women from violence. But what we do need to ask is: in what context do these allegations of “false complaints” always arise?

It’s almost always when we talk about violence against women, especially domestic violence, rape, sexual assault, or atrocities against Dalits, Adivasis, and children. In every one of these cases, the question becomes: “What if it’s false?” And yet, these are all socially marginalised groups—people our Constitution mandates the State to protect, including through special legislation. So I urge us to consider: Who is raising this issue of false complaints—and why? What is it about the prospect of justice that makes them feel so threatened? That’s the real question.

Panchali Ray: Only 32 countries in the world have not criminalised marital rape. Why is it so difficult for a progressive country like India to do so?

Zakia: It’s because of who we are as a society. Even 75 years after Independence and the adoption of our Constitution, we remain deeply patriarchal. That’s the core of it. Our laws, too, reflect this. The State, in its mindset and decision-making, continues to operate from a male-dominated perspective.

Now, yes—we call ourselves a progressive country. But progressive for whom? Are we talking about the people, or about the institutions, the officials, the decision-makers? Criminalising marital rape should be a given—because it is a crime. Even if you’re concerned about saving the institution of marriage, surely an equal partnership—based on mutual respect and trust—stands a far better chance of survival than one built on coercion and entitlement.

So even from a conservative standpoint, this reform is overdue. And from a justice standpoint, it’s essential.

Saumya: I really question whether we can call ourselves progressive if married women in our country do not have the same rights to bodily autonomy, dignity, and equality as anyone else. The issue is also about fear and power. Many of the lawmakers and judges—let’s be honest—are men. Many are husbands. And I suspect part of the hesitation stems from a fear of accountability. There’s this propaganda by men’s rights groups, this fear-mongering, that once the law changes, every wife will run to the police and every husband will live in fear. That’s simply not true, but it’s a narrative that’s been amplified. And I think the real reason it’s difficult to criminalise marital rape is because those in power are imagining themselves on the receiving end of the law.

But if we are to be a truly democratic and just nation, then our fundamental rights—including the right to life with dignity, equality, and freedom from discrimination—must apply to all women, including married women. If we put those rights at the centre of the conversation, then the marital rape exception has to go. And society, too, needs to come to terms with the fact that rape within marriage is a heinous crime.