Marital Rape and the Protection of Women from Domestic Violence Act, 2005: A Critical Legal Analysis

Marital rape remains among the most disputed and inadequately addressed questions in Indian criminal and constitutional jurisprudence. While the Constitution guarantees every individual the rights to dignity, equality, and bodily autonomy, Section 63 of the BNS 2023 (BNS) intentionally preserves a spousal immunity that leaves married women without criminal law protection against sexual violence committed by their husbands. The PWDVA 2005 offers a partial avenue of relief by categorising sexual abuse within marriage as a form of domestic violence, thereby making civil remedies available, including protection orders, rights over the shared household, monetary compensation, and custody arrangements. However, since the PWDVA stops well short of treating non-consensual marital intercourse as a criminal offence, it currently functions as the only legislative instrument through which a survivor can seek any form of state-mediated relief. This paper examines the intersection between marital rape and the PWDVA, critiques the constitutional inadequacies of prevailing criminal law as measured against Articles 14, 15, and 21, and evaluates the significance of emerging judicial thinking on the question of consent within marriage. The study further draws on developments in international and comparative law to situate the Indian debate within a broader global context. The paper concludes that civil remedies, operating without corresponding criminal accountability, are inherently insufficient to address marital sexual violence, and that the continued legislative immunity amounts to a fundamental constitutional failure.