Author: Ashra Usmani, United University, Prayagraj
To the Point
India remains one of the few democratic nations that do not recognize non-consensual sexual intercourse within marriage as rape. Exception 2 to Section 375 of the Indian Penal Code, 1860, grants blanket immunity to husbands for raping their wives, provided the wife is not under 18 years. This exception has come under intense judicial, legislative, and academic scrutiny for violating fundamental constitutional rights.
Abstract
The persistence of the marital rape exception in Indian criminal law starkly contradicts the nation’s constitutional commitment to gender equality, dignity, and bodily autonomy. Codified in Exception 2 to Section 375 of the Indian Penal Code (IPC), 1860, this provision exempts non-consensual sexual intercourse by a man with his wife—if she is not under 18 years—from the ambit of rape. This legal immunity effectively deprives married women of protection under rape laws, treating consent as irrevocably granted through marriage.
This article critically explores the constitutional validity of the marital rape exception in light of Articles 14, 15(1), and 21 of the Indian Constitution. It contends that this exception creates an unreasonable and discriminatory classification between married and unmarried women and fails to withstand the test of equality and non-discrimination. The right to life and personal liberty under Article 21, which has been expansively interpreted by Indian courts to include bodily integrity, decisional autonomy, and the right to be free from cruel and degrading treatment, is gravely undermined by this exception.
Through an analysis of landmark judgments, such as Independent Thought v. Union of India (2017), Joseph Shine v. UOI (2019), the article outlines the judiciary’s evolving approach to women’s autonomy, while highlighting its hesitation to address marital rape head-on. The article also engages with the RIT Foundation case, currently pending before the Supreme Court, which directly challenges the marital rape exception on constitutional grounds.
In addition to judicial perspectives, the article examines the recommendations of key law reform bodies, particularly the Justice Verma Committee Report (2013) and 172nd Law Commission Report (2000).
From a comparative perspective, the article references the international legal landscape, noting that over 50 countries, including many with strong patriarchal traditions, have criminalized marital rape. India’s continued exception thus isolates it from global human rights norms and obligations under treaties such as CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women).
In conclusion, the article calls for urgent legislative reforms to repeal the marital rape exception and ensure that the right to sexual autonomy is not extinguished by marriage. It emphasizes that true constitutional morality must replace outdated notions of marital privilege, and that legal recognition of marital rape is an essential step towards a just, equal, and rights-based legal order.
Use of Legal Jargon
Exception 2, Section 375 IPC: Legal provision that removes marital rape from the definition of rape.
Article 14: Guarantees equal treatment of all individuals under the law without arbitrary distinctions.
Article 15(1): Prohibits the State from discriminating against any citizen solely on the basis of gender.
Article 21: Ensures every person’s right to live with dignity and enjoy personal liberty, including control over their own body and choices.
Presumption of Consent: Legal assumption that consent is inherent in the marital contract.
The Proof
Exception 2 to Section 375 IPC provides that sexual intercourse by a man with his own wife (not under 18 years) is not rape.
This exception continues despite recommendations by Justice Verma Committee (2013) and Law Commission Reports (e.g., 172nd Report) to criminalize marital rape.
Over 50 countries, including the UK, USA, and Australia, recognize marital rape as a criminal offence.
The pending case RIT Foundation v. Union of India challenges the exception on constitutional grounds.
Case Laws
- Independent Thought v. Union of India, (2017) 10 SCC 800
The Supreme Court read down Exception 2 to exclude sexual intercourse with minor wives aged between 15 and 18 years, terming it unconstitutional. It affirmed that marital status cannot be a defense to rape when the wife is underage. - Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1
Upheld a woman’s right to make reproductive choices and her bodily integrity as part of Article 21—key in assessing the right to refuse sex within marriage. - Joseph Shine v. Union of India, (2019) 3 SCC 39
While striking down Section 497 IPC (Adultery), the Court emphasized that the law cannot treat women as property, reinforcing sexual autonomy. - State of Karnataka v. Krishnappa, (2000) 4 SCC 75
Recognized that sexual violence violates the fundamental right to life and liberty under Article 21, encompassing physical and emotional integrity. - RIT Foundation & Ors. v. Union of India, W.P. (C) No. 284/2015
A pending case before the Delhi High Court and now escalated to the Supreme Court, challenging the constitutional validity of Exception 2.
Conclusion
The marital rape exception remains a colonial remnant that clashes with contemporary constitutional ethics and global human rights standards. By granting a husband immunity from prosecution for raping his wife, the law negates a woman’s bodily autonomy, sexual agency, and right to dignity. The assumption that marriage entails irrevocable consent to sexual relations fundamentally violates the evolving standards of gender equality and personal liberty.
Under Article 14, all persons are entitled to equal protection of laws. The marital rape exception arbitrarily distinguishes between married and unmarried women, offering legal protection to one while denying it to the other. This classification serves no intelligible differentia nor does it pursue any legitimate state objective, rendering it constitutionally infirm.
By failing to criminalize marital rape, the State perpetuates gender-based violence. The Indian judiciary has consistently interpreted Article 21 to encompass dignity, autonomy, and freedom from degrading treatment.
The Justice Verma Committee (2013), constituted after the Nirbhaya incident, unequivocally recommended the removal of the marital rape exception. It emphasized that a marriage contract cannot be a license for sexual violence. Despite these recommendations and public outcry, Parliament has failed to act—signal deep-rooted patriarchy in policy-making.
Opponents of reform often argue that criminalizing marital rape would destabilize the institution of marriage and be misused. However, such arguments are rooted in fear, not constitutional logic. Laws must evolve to reflect changing societal norms, especially those that protect fundamental rights. Misuse of law is not a justification for non-enactment—remedial mechanisms can be introduced, just as they exist in other criminal statutes.
Importantly, India is a signatory to international treaties like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which obligates it to protect women from violence, including within the home. Over 50 countries have recognized marital rape as a crime, including those with strong cultural and religious norms around marriage.
In conclusion, the continued existence of the marital rape exception is a constitutional anomaly and a moral failure. It is time for both the legislature and the judiciary to decisively recognize that consent does not dissolve at the altar, and that no woman should lose her right to bodily integrity by virtue of marriage. Legal reform must not wait for further outrage—it must be driven by the commitment to justice, equality, and human dignity.
FAQS
Q1. What is Exception 2 to Section 375 IPC?
Ans: It specifies that a man having sexual relations with his wife, provided she is over 18 years old, does not constitute rape. This provides legal immunity to husbands, making non-consensual sex within marriage non-punishable.
Q2. Is marital rape criminalized in India?
Ans: No, not entirely. While sexual acts with a wife under 18 years are now considered rape after Independent Thought v. Union of India, marital rape involving adult wives is still not a criminal offence due to Exception 2 to Section 375.
Q3. Is the marital rape exception constitutional?
Ans: It is under judicial challenge. Critics argue it violates Articles 14, 15, and 21 of the Constitution by denying married women equal protection and dignity. The Supreme Court is currently considering its constitutional validity.
Q4. What has the Justice Verma Committee said about this exception?
Ans: The Committee recommended removal of Exception 2, calling it an outdated and discriminatory provision that violates the constitutional rights of women.
Q5. What is the international position on marital rape?
Ans: Over 50 countries, including the USA, UK, Germany, and South Africa, criminalize marital rape. India remains one of the few democracies where it is still legally permitted.
Q6. Can a woman file a case under other laws if raped by her husband?
Ans: Yes, she can file cases under Section 498A IPC (cruelty) or Protection of Women from Domestic Violence Act, 2005 for sexual abuse, but these do not recognize the act as rape.
Q7. What is the impact of not criminalizing marital rape?
Ans: It normalizes sexual violence within marriage, undermines a woman’s agency, and leaves survivors without adequate legal recourse or recognition. It also fosters a culture of impunity for abusive spouses.
Q8. Will criminalizing marital rape harm the institution of marriage?
Ans: No, Marriage must not provide permission to engage in violence. Laws against dowry, cruelty, and domestic violence did not destroy marriage—they strengthened the rights of women within it.
Q9. Has the judiciary taken a progressive stance on this issue?
Ans: Yes, the courts have upheld principles of equality and autonomy in related cases (Suchita Srivastava, Joseph Shine), but have stopped short of striking down the marital rape exception so far. The matter is currently sub judice.
Q10. What reforms are being proposed?
Ans: Activists and legal scholars advocate:
Repealing Exception 2 to Section 375
Creating safeguards against misuse
Training judges and police
Amending the Domestic Violence Act to recognize marital rape as a ground for divorce and compensation.
