Understanding Rape Laws and the Quest for Justice

Every 15 minutes, a rape is reported somewhere in India. According to the National Crime Records Bureau, 31,677 rape cases were registered in 2021 alone – roughly 86 cases every single day. And these are only the reported ones. Experts estimate that a staggering 99% of sexual assault cases go unreported in India. Behind these numbers lies an urgent legal question: does India’s rape law adequately define the crime, protect survivors, and deliver justice? The answer, as this post explores, is complicated.

How Indian law defines rape
The seven circumstances: when does the law say “no” means “no”?
What counts as “consent” under the law?
The “against her will” vs “without her consent” distinction
The marital rape exception: law’s most glaring gap
The Delhi High Court split verdict and Supreme Court proceedings
Rape as power, not passion: reframing the crime
Landmark cases shaping the law
Where the law falls short: persistent gaps
The road to reform

How Indian law defines rape

The legal definition of rape in India has long been anchored in Section 375 of the Indian Penal Code (IPC), which was enacted in 1860 during British colonial rule. The section defines rape as sexual intercourse with a woman against her will, without her consent, or through coercion, misrepresentation, fraud, intoxication, or when she is of unsound mind – and in all cases when she is under 18 years of age.

With the Criminal Law (Amendment) Act, 2013, the definition was significantly broadened. The new law moved beyond peno-vaginal intercourse and recognized that a man commits rape if he penetrates his penis into the vagina, mouth, urethra, or anus of a woman; inserts any object or body part into her vagina, urethra, or anus; manipulates any part of her body to cause penetration; or applies his mouth to her genitals. This was a critical step – it acknowledged that rape is not one act but a spectrum of non-consensual penetrative violations.

In 2024, the IPC was replaced by the Bharatiya Nyaya Sanhita (BNS), 2023, and Section 375 was renumbered as Section 63. The definition of the offence and its exceptions, however, remain substantially the same.

The seven circumstances: when does the law say “no” means “no”?

Section 375 IPC (now Section 63 BNS) lists seven distinct circumstances under which a sexual act amounts to rape. These include acts committed: against a woman’s will; without her consent; with consent obtained under fear of death or injury; with consent obtained through fraud (e.g., impersonating her husband); with consent given due to unsoundness of mind or intoxication; with consent given on a false promise of marriage; and with any woman under 18 years of age, with or without consent.

Each of these circumstances reflects an important legal reality: consent is not just a single “yes” or “no.” It is contextual, free, and must be informed. As the law now clarifies, a woman who does not physically resist an act of penetration shall not, by that fact alone, be regarded as having consented. This provision directly responds to decades of problematic judicial reasoning that treated the absence of physical resistance as implied consent.

The post-2013 definition under the IPC introduces a clear explanation of consent: an unequivocal, voluntary agreement communicated by words, gestures, or any form of verbal or non-verbal communication, indicating the woman’s willingness to participate in the specific sexual act. Critically, consent to one act does not imply consent to another, and consent can be withdrawn at any point.

However, the legal concept of consent has remained deeply contested in practice. Courts have historically demanded what critics call a “genuine rape victim” standard – expecting visible injuries, immediate reporting, and a prior chaste character – before accepting a woman’s account. Feminist legal scholars have argued that this approach centers the man’s perception of the woman’s consent rather than the woman’s own experience – a fundamental flaw in how rape adjudication operates.

There is also the problem of consent obtained through deception. Indian courts have frequently prosecuted men who had consensual sex after a false promise of marriage under rape law. While this recognizes that fraud vitiates consent, it has also led to legal ambiguity – courts must determine whether a promise of marriage was genuine but later broken, or was always a deceitful pretext to obtain consent. The line between the two is not always easy to draw.

A nuance that often gets overlooked is the distinction between the phrases “against her will” and “without her consent.” As legal commentators have noted, acting “against her will” implies that a woman expressly refused and the man proceeded despite her protest. “Without her consent,” on the other hand, is broader – it covers situations where the woman simply never gave agreement, even if she did not actively resist. Both conditions independently constitute rape under Section 375, which reflects a more nuanced understanding of how sexual coercion actually operates.

The marital rape exception: law’s most glaring gap

Perhaps no provision in Indian rape law is more controversial than Exception 2 of Section 375 (now Exception 2 of Section 63 BNS), which states that sexual intercourse by a man with his own wife is not rape, provided the wife is not under 18 years of age. This exception effectively places married women in a separate legal category – one where their bodily autonomy is subordinated to the institution of marriage.

The origin of this exception lies in an outdated belief that a woman’s consent becomes permanent upon marriage, creating what petitioners have called “consent in perpetuity.” This notion was articulated by 17th-century English judge Sir Matthew Hale, whose reasoning was embedded in colonial-era law and carried forward into post-independence India – largely unchanged.

Among married women aged 18-49 who have ever experienced sexual violence, 83% report their current husband and 13% report a former husband as the perpetrator, according to the National Family Health Survey. Yet Indian law offers no criminal remedy for rape within a cohabiting marriage. Separated spouses have limited recourse under Section 376B IPC, and married women experiencing sexual violence in the home can seek civil protection under the Protection of Women from Domestic Violence Act, 2005 – but this falls far short of treating the act for what it is: a crime.

The Delhi High Court split verdict and Supreme Court proceedings

The marital rape debate reached a critical juncture in May 2022 when the Delhi High Court delivered a split verdict on the constitutionality of the marital rape exception. Justice Rajiv Shakdher struck down the exception as unconstitutional, holding that a woman’s right to withdraw consent is at the core of her right to life and liberty under Article 21. Justice C. Hari Shankar disagreed, maintaining that the issue involved complex socio-legal considerations and required legislative intervention.

The matter was then referred to the Supreme Court, which began hearing a batch of consolidated petitions. In October 2024, the Union government filed an affidavit opposing the removal of the marital rape exception, arguing that the issue is more social than legal and falls within legislative policy. The government’s position has drawn sharp criticism from legal scholars and rights activists, who point out that India is among a small group of countries that explicitly decriminalises marital rape, despite being a signatory to the Universal Declaration of Human Rights and having ratified CEDAW in 1993.

Notably, when Parliament enacted the Bharatiya Nyaya Sanhita in 2023 to replace the IPC, it retained the marital rape exception verbatim – a clear legislative choice to preserve the status quo despite widespread calls for reform.

Rape as power, not passion: reframing the crime

A significant intellectual shift in how rape is understood – both legally and socially – has occurred over the past few decades. For long, rape was treated primarily as a crime of uncontrolled sexual desire. The Criminal Law (Amendment) Acts of 1983, 2013, and 2018 introduced a revised understanding – that rape and sexual assault are expressions of power rather than crimes of passion. This shift matters because it changes who we hold responsible, what we look for in evidence, and how we evaluate a survivor’s conduct.

Feminist legal scholarship has pushed this argument further. Feminist campaigns in the 1980s reframed rape as a crime against a woman’s autonomy and bodily integrity – distinct from the patriarchal framing that had historically treated rape as an offence against family honour or a man’s property. This distinction is not merely academic. When rape is seen as dishonour to a family, the victim’s conduct becomes the subject of scrutiny; when it is understood as a violation of autonomy, the focus shifts – correctly – to the accused’s conduct.

The Mathura rape case (1972) was a turning point in this regard. The Supreme Court’s acquittal of two police officers on the ground that Mathura, a young tribal woman, was “habituated to sexual intercourse” and had not resisted, triggered one of India’s earliest mass feminist protests. The result of this public agitation was the Criminal Law (Amendment) Act, 1983, which shifted the burden of proof to the accused in custodial rape cases and marked the beginning of sustained legislative engagement with the problem of sexual violence.

Landmark cases shaping the law

Several judicial decisions have significantly shaped the contours of rape law in India beyond the statutory text.

Tukaram v. State of Maharashtra (1978) – also known as the Mathura rape case – was the catalyst for the 1983 amendments, as described above. Independent Thought v. Union of India (2017) was another landmark: the Supreme Court held that the marital rape exception could not extend to girls between 15 and 18 years of age, since any sexual act with a girl under 18 constitutes rape regardless of marriage. Exception 2 was effectively read down to apply only to wives above 18.

In 2022, the Supreme Court further acknowledged the evolving understanding of marital rape when it ruled in a reproductive rights case that “rape” for the purposes of the Medical Termination of Pregnancy Act includes marital rape – meaning a married woman can seek abortion on the ground of rape by her husband. This was a significant, if limited, judicial recognition of the harm caused by marital rape, even as its criminal status remains unresolved.

Where the law falls short: persistent gaps

Despite decades of amendments, India’s rape law continues to face serious criticism on multiple fronts. The Amnesty International assessment of the 2013 Act noted that while it criminalised acid attacks, stalking, and voyeurism, it failed to address the effective legal immunity enjoyed by security forces accused of sexual violence, and retained offence definitions based on outdated notions of female “modesty” rather than bodily integrity.

The BNS 2023 – India’s newest criminal code – retains the phrase “outraging the modesty of women” and does not include provisions for rape of males or transgender individuals, leaving significant gaps in protection. The law also remains gender-specific: only a man can commit rape under the current framework, and only against a woman.

Conviction rates tell their own troubling story. Research shows that after the Criminal Law (Amendment) Act 2013 raised minimum punishments, the average conviction rate in studied cases actually fell – from over 16% to under 6% – suggesting that harsher penalties may paradoxically make it harder to secure convictions, as courts become more reluctant to convict.

The Justice J.S. Verma Committee in its 2013 report had recommended that marriage should not be a defence to rape, that the relationship between victim and accused should not influence the determination of consent, and that the two-finger test for assessing rape victims should be discontinued. Most of these recommendations were either diluted or ignored in the final legislation – a pattern that has repeated itself across reform cycles.

The road to reform

India’s rape laws have come a long way from the colonial-era statute that treated the crime primarily as an affront to male honour. The legal framework now recognises a broader spectrum of non-consensual acts, provides an affirmative definition of consent, and prescribes significantly enhanced punishments. But the marital rape exception, the gender-specific nature of the offence, low conviction rates, and the persistent influence of patriarchal stereotypes in courtrooms all point to the distance yet to be covered.

Reform, as the Mathura case and the Nirbhaya case both demonstrated, tends to come after public outrage rather than through proactive legislative vision. Sustained movement toward justice requires treating rape not as an exception to social order, but as the expression of a power imbalance that the law must consistently and unequivocally address – regardless of the relationship between the accused and the survivor, regardless of her past, and regardless of whether she is married.

What do you think? Should the marital rape exception be removed from Indian law, given that India has ratified international human rights instruments guaranteeing women’s bodily autonomy? And if conviction rates tend to fall when punishments are increased, what kinds of reforms – beyond harsher sentencing – might actually make the legal system more effective in delivering justice to rape survivors?

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PDF 📄

Table of Contents

How Indian law defines rape 🔗

The seven circumstances: when does the law say “no” means “no”? 🔗

What counts as “consent” under the law? 🔗

The “against her will” vs “without her consent” distinction 🔗

The marital rape exception: law’s most glaring gap 🔗

The Delhi High Court split verdict and Supreme Court proceedings 🔗

Rape as power, not passion: reframing the crime 🔗

Landmark cases shaping the law 🔗

Where the law falls short: persistent gaps 🔗

The road to reform 🔗

References

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