Author: Rani Prajapat, Ideal Institute of Management and Technology, School of Law
Abstract
In spite of international advances toward the recognition of women’s sexual autonomy, India persists in exempting forced sexual intercourse in marriage from the definition of rape under Exception 2 of Section 375 IPC. This juridical immunity demonstrates a colonial, patriarchal conception of marriage that regards a wife as property, essentially rendering her post-marriage bodily autonomy moot. As societies change and constitutional morality matures, denial of marital rape as a criminal offense raises serious doubts about India’s commitment towards gender equality, fundamental rights, and international human rights. This article discusses the constitutional, legislative, and socio-legal dimensions of marital rape exemption in India, reviews case law, contrasts international legal norms, and recommends criminalization immediately.
To the Point
The Indian Penal Code, 1860, in Exception 2 to Section 375, grants a retrograde protection to husbands where it is laid down that “sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape.” This amounts to a legal fiction where sex within marriage is presumed to be with consent, thus legalizing marital rape. This exception contravenes the espoused principles of equality (Article 14), dignity and autonomy of body (Article 21), and non-discrimination (Article 15) under the Indian Constitution. In spite of growing judicial activism, civil society activism remains ineffective, and even recommendations from the Justice Verma Committee, the legislature has not repealed the exception of marital rape. This piece advocates for an immediate constitutional and legislative reform to acknowledge a woman’s right to utter the word “no,” regardless of whether she is married or not.
Use of Legal Jargon
Exception 2 to Section 375 IPC: Legal provision exempting husbands from criminal liability for rape of wives if the wife is above 18 years.
Doctrine of Severability: Permits severance of unconstitutional portions of an act without nullifying the entire law.
Article 14: Guarantees equality before law and equal protection of the laws.
Article 15(1): Prevents discrimination on the basis of sex.
Article 21: Ensures the right to life and personal liberty, encompassing dignity and autonomy.
Bodily Autonomy: A human rights and legal concept acknowledging an individual’s right to control what occurs to their body without coercion or influence from outside forces.
Presumption of Consent: The erroneous legal presumption that there is consent in a marital relationship.
International Human Rights Norms: Global legal standards like CEDAW, UDHR, and ICCPR that promote safety from all kinds of violence.
The Proof
Historical and Legislative Context
Exemption for marital rape is a colonial heritage, drawing upon the 1736 theory of jurist Sir Matthew Hale, who asserted that “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent, she hath given herself up in this kind unto her husband.”
This assumption was enshrined in the IPC 1860 by the British.
After independence, India continued to maintain this provision in the face of radically altered constitutional framework. The Law Commission of India in its 42nd, 172nd, and 156th Reports did not suggest the elimination of the exception on grounds of “sanctity of marriage” and to prevent unnecessary state interference.
But the Justice Verma Committee (2013), constituted in the wake of the Nirbhaya gangrape case, unequivocally proposed the removal of the marital rape exception on the grounds that consent lies at the very core of any sexual relationship.
Judicial Interpretation and Developments
Indian courts have increasingly begun challenging the constitutionality of Exception 2:
1. Independent Thought v. Union of India (2017)
The Supreme Court read down the marital rape exception to hold that intercourse with a wife under 18 years of age constitutes rape. The court held that marriage does not take precedence over the right to bodily integrity and sexual autonomy, particularly in the case of minors.
2. RIT Foundation & Others v. Union of India (2022)
A turning point one, this case resulted in a split verdict in the Delhi High Court:
Justice Rajiv Shakdher held Exception 2 to be unconstitutional, holding that it contravenes Articles 14, 15, and 21.
Justice C. Hari Shankar dissented, contending that legislative jurisdiction must win the day and courts should leave personal laws alone.
The matter is now pending with the Supreme Court of India, which has grouped it with other PILs.
3. Joseph Shine v. Union of India (2018)
The case involved adultery legislation, yet the Court ruled that marriage does not obliterate the constitutional freedoms of a woman, such as dignity and privacy, in a precedent judgment applicable to marital rape.
4. Suchita Srivastava v. Chandigarh Administration (2009)
The Supreme Court held that a woman has an inviolable right to bodily integrity and reproductive autonomy under Article 21. The above ruling is a foundation to challenge forced sex during marriage.
Constitutional and Human Rights Perspective
Article 14: The exemption of marital rape discriminates between married and unmarried women and denies the right to equality before law.
Article 15: It is discriminatory on the basis of sex and marriage.
Article 21: Legitimizing coercive sex in marriage is a violation of a woman’s right to dignity, privacy, and bodily integrity.
Add to this, India is a signatory to and has ratified major international conventions:
CEDAW (Convention for the Elimination of All Forms of Discrimination Against Women)
ICCPR (International Covenant on Civil and Political Rights)
UDHR (Universal Declaration of Human Rights)
These instruments compel India to prevent all gender-based violence, including marital rape.
Case Laws
1. Independent Thought v. Union of India, (2017) 10 SCC 800
Exception 2 read down to not cover child marriages. Held that marital status does not override consenting minors.
2. RIT Foundation v. Union of India, W.P. (Crl.) 284/2015
Delhi HC divided verdict on marital rape exception’s constitutional validity; still pending final verdict in Supreme Court.
3. Joseph Shine v. Union of India, (2019) 3 SCC 39
Declared Section 497 IPC (adultery) as patriarchal. Court reaffirmed the position that constitutional morality overrides societal morality.
4. Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1
Right of a woman to reproductive autonomy granted under Article 21.
5. R v. R, [1991] UKHL 12
Landmark UK case in which the House of Lords overruled the marital rape exception, describing marriage as not a license for sexual violence.
Counterarguments and Rebuttals
Misuse of Law
Critics argue that criminalizing marital rape would be misused like Section 498A IPC.
Rebuttal: Every criminal law can be misused, yet laws exist for redress. The solution lies in strong safeguards and judicial discretion, not in denying justice.
Sanctity of Marriage
Some believe criminalizing marital rape will destroy the institution of marriage.
Rebuttal: Marriage is a partnership of equals, not a license for coercion. A relationship based on fear cannot be protected by law.
Private Matter
The “four walls of home” argument suggests the law should not enter the bedroom.
Rebuttal: Domestic violence laws (DV Act) already regulate personal relationships. Rape is a crime irrespective of where it occurs.
Socio-Legal Impact and Need for Reform
National Family Health Survey-5 (NFHS-5) revealed that over 29% of married Indian women have experienced sexual violence from their spouses.
The Justice Verma Committee (2013), one of the most respected reform bodies, unequivocally recommended criminalizing marital rape.
In 2023, the Karnataka High Court held that non-consensual sex within marriage may still amount to cruelty under other laws.
The current legal position undermines gender justice, erodes constitutional values, and legitimizes violence in the guise of marriage. The criminalization of marital rape would mark a paradigm shift toward truly recognizing women as equal citizens under the Constitution.
Conclusion
India’s refusal to criminalize marital rape is a legal, moral, and constitutional failure. It is time to reject outdated Victorian notions that treat a wife as a husband’s sexual property. Marital rape violates the core of human dignity, equality, and personal liberty. The Constitution of India does not permit a marital relationship to override a woman’s right to say ‘no’. The judiciary has set the stage; the legislature must now move quickly. Identifying marital rape as a crime is not only punishing criminals but of reaffirming that marriage does not defeat consent.
FAQS
1. What is the legal definition of marital rape in India?
At present, marital rape is not legally recognized as an offense if the wife is above the age of 18 in India. Exception 2 to Section 375 IPC provides immunity for husbands.
2. Is there a law that safeguards women against forced sex by their husbands?
Women can approach the Protection of Women from Domestic Violence Act, 2005, seeking relief for sexual abuse, but marital rape is not an offense under IPC.
3. What is the status of the marital rape case in India presently?
The Supreme Court is considering petitions questioning the constitutionality of Exception 2 to Section 375 IPC after a divided verdict from the Delhi High Court in 2022.
4. What did the Justice Verma Committee state?
The Justice Verma Committee (2013) stated categorically that marital rape should be criminalized and described the marital rape exemption as unconstitutional.
5. Can India criminalise marital rape without impairing the institution of marriage?
Yes. Democratic nations have criminalised marital rape without undermining the institution of marriage. Consent and equality form the basis of contemporary marriage
