Bombay HC Says Marital Rape Can Be Tried Under Cruelty Until Law Is Amended: A Wake-Up Call to Lawmakers
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- 14 Apr 2025 --
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In a powerful and progressive judgment, the Bombay High Court has ruled that while marital rape is not yet recognized as a standalone criminal offense under Indian law, acts of non-consensual sex by a husband can still be prosecuted under Section 498A of the Indian Penal Code (IPC) — which deals with cruelty against a woman by her husband or his relatives.
The ruling, delivered in April 2025, is both a legal milestone and a moral nudge to India’s legislature, as the country continues to debate whether non-consensual sex within marriage should be treated as rape under law.
The Case That Brought the Issue to Light
The case involved a woman from Mumbai who filed an FIR against her husband, accusing him of regular sexual assault, physical abuse, and psychological torture over several years of marriage. She specifically alleged that her husband had repeatedly forced her into sex without consent, sometimes violently.
However, when the police registered the complaint, they omitted the rape charges, citing Exception 2 to Section 375 of the IPC, which states that sexual intercourse by a man with his own wife (provided she is not under 18) is not rape.
The woman challenged the omission in the Bombay High Court, arguing that her constitutional and bodily rights were being denied simply because she was married.
What the Bombay High Court Said
Justice Revati Mohite Dere and Justice Makarand Karnik, delivering the judgment, acknowledged the legal gap in India’s criminal laws but ruled that such acts can — and must — be prosecuted under Section 498A (cruelty).
The bench noted:
“Consent is the foundation of all intimacy. A woman's body is not property, and marriage does not bestow unlimited rights over it.”
Key observations included:
- Marital rape, though not punishable as rape, constitutes mental and physical cruelty, and can be prosecuted accordingly
- Courts must interpret Section 498A in a liberal and progressive manner to protect women from intimate partner violence
- Omission of rape charges does not mean impunity, as the act itself can still be addressed under existing legal provisions
The Court also directed the police to reinvestigate the case, taking into account all aspects of physical and sexual cruelty.
Understanding the Legal Landscape: The Marital Rape Exception
India remains one of the few democracies where marital rape is not recognized as a criminal offense. The Exception under Section 375 of IPC reads:
“Sexual intercourse by a man with his own wife, the wife not being under 18 years of age, is not rape.”
This provision has been challenged in multiple courts, and in 2022, the Delhi High Court gave a split verdict in a similar matter. A batch of petitions challenging the constitutionality of the exception is currently pending before the Supreme Court.
Until such time as Parliament amends the law or the Supreme Court intervenes, judgments like that of the Bombay High Court are critical legal bridges, ensuring that victims do not go without remedy.
Why This Verdict Is Significant
1. Acknowledges Marital Rape as a Reality
Though constrained by the law, the Court did not turn a blind eye to the pain and trauma of survivors.
2. Broadens the Scope of Section 498A
The ruling makes it clear that sexual abuse within marriage is a form of cruelty, and must be punished as such, ensuring that survivors can still seek justice.
3. Encourages Survivor-Centric Policing
By directing police to reinvestigate, the Court has signaled that law enforcement cannot dismiss claims of sexual abuse merely due to marital status.
Social and Legal Reactions
The verdict has triggered renewed calls for criminalizing marital rape in India. Women’s rights groups hailed it as a courageous and compassionate interpretation of the law.
Senior Advocate Rebecca John stated:
“This judgment acknowledges what women have always known — that abuse doesn’t become love just because there’s a marriage certificate.”
However, conservative voices continue to argue that criminalizing marital rape may be misused or disrupt the sanctity of marriage. The Court addressed these concerns by stating that no institution — not even marriage — can justify violence or coercion.
What Comes Next: The Push for Legal Reform
With this judgment, the ball is once again in the legislature’s court. The Law Commission of India has been tasked with examining the marital rape exception, and multiple Private Members’ Bills seeking to criminalize marital rape have been introduced in Parliament — but none have passed.
The Bombay High Court has shown that judiciary can provide temporary relief, but real justice lies in legislative courage.
Until the Law Catches Up, the Courts Must Lead
The Bombay High Court’s ruling doesn’t rewrite India’s rape laws — but it reinterprets them with empathy, awareness, and a commitment to justice. By acknowledging marital rape as cruelty, it offers survivors a path to legal remedy, while signaling that the law must evolve to protect all women — not just those unmarried.
Until then, this verdict stands as a powerful reminder that consent does not expire at marriage, and that no legal exception should ever silence a survivor’s cry for justice.
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