In India, marriage is considered a sacred bond. A husband and wife are generally supposed to satisfy each other’s conjugal needs. This also includes the obligation to consummate the marriage with sexual intercourse. The idea is not confined to producing offspring but physical intimacy as well. On one side, sexual intercourse is such an integral part of a marriage. On the other side, Shashi Tharoor’s marital rape Bill seeks to criminalize forced sex on spouse, the wife. Let us understand the complexities through an Indian husband’s perspective.
What is Marital Rape Bill?
Rape is forced sexual intercourse with a woman without her consent. A Bill is a proposed law which is yet to become a law after being approved by the Legislature. In India, marriage is an exception to a person from being prosecuted for rape under Section 63 of the BNS 2023. In other words, a husband cannot face legal consequences for forcing his wife to have sexual intercourse despite her refusal. With this background, the Marital Rape Bill seeks to criminalize forced sexual intercourse by a husband with his wife.
Shashi Tharoor is a member of Indian National Congress, a public intellectual, former diplomat and bureaucrat. On Friday December 5, 2025, Marital Rape Bill was introduced in the Lok Sabha by Mr. Shashi Tharoor as a private member’s Bill. The Bill seeks to remove the exception extended to a husband forcing sexual relations without her consent.
Earlier, in May 2022, the Delhi High Court had delivered a split verdict, where on Judge upheld exception for husband in rape priovision, and the other sought criminalization of marital rape. In November 2022, Communist Party MP Binoy Viswam submitted a Criminalisation Of Marital Rape Private Member Bill in the Rajya Sabha. In December 2022, TMC Leader Derek O’Brien also introduced a Private Member’s Bill to amend the Indian Penal Code to criminalize marital rape. The Bills failed to bring anything and the advent of Bharatiya Nyaya Sanhita kept the status quo for marital rape law in India.
Why criminalizing Marital Rape will be a problem for men?
With context to Marital Rape Bill, we are talking about men who are married, Indian husbands. With the Dowry Prohibition Act, Domestic Violence Act and provision for cruelty (498A IPC or 85 and 86 of BNS) in place, husbands in India fear false cases already. Most of the matrimonial disputes reflect that false allegations are made against the husband and his relatives whenever there is a conflict. Why? Because the law supports women and it is harder for innocent husbands and families to survive false cases.
That being the existing picture, Marital Rape Bill is portrayed as a shield for women facing sexual abuse at the hands of their husbands. However, many know and fear that it will serve as another weapon for women to make false cases against their husbands. Let us get into technicalities to understand the situation better.
Evidence in Rape Case
Apart from case specific evidence, the ingredients of an offence need to be proved in criminal matters. In case of rape, the major ingredients include “sexual intercourse” and “absence of consent”. To prove rape by the accused, DNA evidence is collected, medical examination is done, victim’s testimony is recorded, along with other evidence like witnesses, digital and circumstantial evidence like location, communication.
Disproving Marital Rape Allegations
The Marital Rape Bill seeks to punish forced sexual intercourse committed by a husband upon his wife. The idea is not to discriminate against someone for the same offence based on marriage. Since it is about husband and wife, alleging rape by husband is not difficult. However, for a husband to prove before the Court that it was not forced but consensual intercourse, it will never be a cake walk.
Based on the aspects to be proved in a rape case, things will be different in case of allegations by wife against her husband. Why? Because circumstances will show that the husband and wife were at the same location, which is normal due to cohabitation. Regarding DNA evidence, a husband and wife may have consensual intercourse and the DNA evidence will still be there, even if it is alleged to be forced. Regarding medical examination for injuries, the law makes it clear that absence of injuries does not negate the scope for rape.
If it is about strangers, there can be witnesses to point out that the perpetrator went in the same direction, or forced the victim. However, a husband and wife sharing a common space is a matter of normal course. For a stranger, prior communication may reflect upon consent. But for a husband, communicating physical intimacy through calls or social media may not be a common course.
In rape cases, the burden of proof lies with the Prosecution. So, if a husband has to disprove the allegations of rape made by his wife, it will be almost impossible for him to do so.
False Cases in Matrimonial Disputes
Indian laws favour women a lot, more so for married women. The reason being prolonged patriarchy in our family system. Women have faced tough times and even lost their lives at the hands of marital relations. However, it has been noticed in recent times that men are victims of gender stereotypes in Indian Legal System. Several matrimonial disputes come out as false allegations of dowry, violence and cruelty, made by married women against their husband and in-laws. The laws aimed at protecting the interests of women are being used as weapons to get even with the in-laws in a broken marriage.
This approach has affected more families in recent times. The Arnesh Kumar Guidelines somewhat protected the interests of husbands and their families against arbitrary arrests in cruelty cases. However, innocent families continue to face the wrath of women who put all the blame of broken marriages upon the in-laws and fight them with allegations that ruin lives. That is why, marital rape bill is feared more as a complimentary weapon to existing chaos in matrimonial laws.
Alternative Reliefs
Most of those who advocate against criminalizing marital rape state that other remedies are available for wife who suffers sexual assault at the hands of her husband. She can file cruelty case under the Bharatiya Nyaya Sanhita, she can also file domestic violence cases. Most importantly, she can file for divorce on the ground of cruelty to put an end to her suffering. Hence, a husband who does not respect the dignity of his wife still does not go free.
Marriage system is already at the verge since families fear false cases by daughters-in-law. Criminalizing marital rape will be an additional burden, which will act as another attack upon already burdened husband’s side.
Suggestion
Shashi Tharoor’s Marital Rape Bill is a private Bill. The history of private bills reflects that there is no scope for it to pass in the Parliament to become a law. However, if criminalizing marital rape is considered further, the legislature should take gender neutral laws as a priority. If that happens, there will be no resistance against criminalization of marital rape. Because in that case, sexual assault against men and women will be treated equally. Allegations of forced sexual intercourse could be made by both men and women, and there will be no gender bias against victims.
