Author- Farhin Asfar, Durgapur Institute of Legal Studies
To the Point
Marital rape — the act of non-consensual sexual intercourse by a husband with his wife — remains outside the ambit of criminal law in India. Exception 2 to Section 375 of the Indian Penal Code (IPC) continues to exempt husbands from prosecution for raping their wives, provided the wife is not under 18 years of age. This archaic exception stands in direct conflict with the spirit of constitutional equality, the right to dignity, and bodily autonomy guaranteed under Articles 14, 15, and 21 of the Indian Constitution. The time has come to recognize that marriage cannot and should not be a license to violate a woman’s consent.
Use of Legal Jargon
The debate surrounding marital rape engages critical legal concepts such as bodily integrity, individual autonomy, equality before law, legitimate state interest, and constitutional morality. It involves interpreting the intersection of criminal jurisprudence, constitutional rights, and gender justice. The doctrine of repugnancy between personal law and constitutional mandates is central to this issue. The concept of implied consent within marriage, a vestige of colonial patriarchy, stands at odds with the contemporary constitutional understanding of consent as an ongoing, voluntary, and revocable choice.
The Proof
Historical Background
The marital rape exemption was introduced by the British through the IPC of 1860, rooted in Sir Matthew Hale’s seventeenth-century assertion that a husband cannot be guilty of raping his lawful wife because by marriage the wife gives irrevocable consent. Independent India inherited this colonial legacy without reconsidering its moral or legal validity.
The IPC defines rape under Section 375 but excludes from its purview sexual intercourse by a man with his own wife, the wife not being under 18 years of age. The provision thus legally denies married women protection available to every other woman, creating a class-based immunity for husbands and a class-based disability for wives.
Constitutional Contradiction
The exemption clearly violates Article 14 (Equality before law) by treating married women differently from unmarried women without a rational nexus to any legitimate objective. It also infringes Article 21 (Right to life and personal liberty), which the Supreme Court has expansively interpreted to include the rights to dignity, privacy, and bodily integrity. In Suchita Srivastava v. Chandigarh Administration (2009), the Court recognized a woman’s right to reproductive and bodily autonomy as part of Article 21. If a woman has the right to decide whether to carry a pregnancy, she must equally have the right to refuse sexual intercourse.
Further, Article 15(3) empowers the State to make special provisions for women to remedy historical discrimination. Criminalisation of marital rape would not violate this clause but rather advance its objective by ensuring substantive equality.
Judicial Inconsistency
The judiciary’s stance has evolved inconsistently. In Smt. Sakshi v. Union of India (2004), the Supreme Court acknowledged the need to broaden the understanding of sexual offences but did not directly address marital rape. The most direct challenge came in RIT Foundation v. Union of India (Delhi High Court, 2022), where the bench delivered a split verdict — Justice Shakdher held Exception 2 unconstitutional, while Justice Hari Shankar upheld it, reasoning that criminalisation could disrupt the “institution of marriage.” The matter now awaits adjudication by the Supreme Court.
This division reveals the enduring tension between constitutional morality and social morality. While the latter continues to regard marriage as a private domain immune from state interference, constitutional morality demands that no institution, including marriage, can justify the denial of fundamental rights.
Abstract
The persistence of marital rape exemption in India reflects a patriarchal legal framework that treats women’s bodies as marital property. Although India has made progress in gender-sensitive criminal reforms — such as through the Criminal Law (Amendment) Act of 2013 — it has failed to address the foundational issue of consent within marriage.
Globally, over 100 countries, including the United Kingdom, the United States, South Africa, and Nepal, criminalise marital rape, recognizing it as a violation of human rights and gender equality. India, however, remains an outlier, despite being a signatory to several international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which obliges states to ensure equal protection of women under the law.
Criminalising marital rape is not merely a legislative reform — it is a constitutional necessity. It affirms a woman’s agency over her body, her right to choose, and her entitlement to dignity even within marriage.
Case Laws
1. Bodiless Consent Doctrine – Queen v. Clarence (1888)
This English case formed the historical basis for marital immunity, holding that a husband could not be guilty of raping his wife due to the implied consent given at marriage. Indian law later absorbed this doctrine through colonial drafting of the IPC.
2. Tukaram v. State of Maharashtra (1979) – Mathura Rape Case
Though not a marital rape case, it triggered national outrage and reforms in rape law, reinforcing the principle that absence of consent is central to defining rape. It laid the foundation for understanding sexual autonomy beyond marital relationships.
3. Bodhisattwa Gautam v. Subhra Chakraborty (1996)
The Supreme Court described rape as a crime against the entire society and a violation of the victim’s fundamental rights under Article 21. If rape is a violation of fundamental rights, marital status cannot negate those rights.
4. Independent Thought v. Union of India (2017)
The Court read down Exception 2 to Section 375 to exclude sexual intercourse with wives below 18 years of age, holding it unconstitutional and violative of Articles 14, 15, and 21. This landmark case established that the marital relationship cannot override a minor girl’s consent — implicitly questioning why adult married women remain excluded from protection.
5. Joseph Shine v. Union of India (2018)
The Supreme Court decriminalised adultery, holding that a husband is not the master of his wife’s sexuality and that women are equal partners in marriage. The judgment’s reasoning directly undermines the logic sustaining marital rape immunity.
6. State of Maharashtra v. Madhukar Narayan (1991)
The Court held that every woman, irrespective of her sexual history or character, has the right to privacy and protection of her body. This recognition extends logically to married women within their matrimonial homes.
7. Justice K.S. Puttaswamy v. Union of India (2017)
The right to privacy was declared a fundamental right under Article 21, encompassing decisional autonomy and bodily integrity. Forced sexual intercourse by a husband intrudes upon this privacy, making the marital rape exception constitutionally untenable.
The Constitutional Argument
1. Article 14 – Equality Before Law
The marital rape exemption creates an unreasonable classification between married and unmarried women without a rational nexus to any legitimate state aim. The State’s duty under Article 14 is to ensure equal protection, not to perpetuate unequal vulnerability.
2. Article 19(1)(a) – Freedom of Expression
A woman’s right to say “no” is an expression of her will. When the law refuses to recognize that “no” within marriage, it curtails her fundamental freedom of expression.
3. Article 21 – Right to Life and Personal Liberty
Judicial interpretation of Article 21 includes the right to live with dignity and bodily autonomy. Non-recognition of marital rape therefore negates this core constitutional guarantee.
4. Directive Principles and International Obligations
Article 51(c) of the Constitution urges the State to respect international law and treaty obligations. As a party to CEDAW and the Beijing Declaration, India is bound to eliminate discrimination against women in all spheres, including marriage.
Social and Legal Implications
1. Marriage as a Partnership, Not Ownership
Modern constitutionalism views marriage as a partnership of equals. The husband’s unilateral right to sexual access converts marriage into ownership — a concept incompatible with the equality envisioned under the Constitution.
2. Misuse Argument
Opponents of criminalisation often raise the spectre of misuse. However, similar arguments were made against the criminalisation of dowry deaths, domestic violence, and sexual harassment. Legal systems are designed to assess evidence and protect the innocent; potential misuse cannot justify denying protection to victims.
3. Evidentiary Concerns
Critics argue that proving marital rape is difficult due to the private nature of the act. Yet, difficulty of proof cannot nullify the recognition of rights. The law already addresses evidentiary challenges in other sexual offences and domestic-violence cases through procedural safeguards.
4. Law Commission’s Position
The 172nd Law Commission Report (2000) recommended deleting Exception 2, stating that marriage should not be a defense to rape. Despite this, legislative inertia persists due to sociocultural taboos and political hesitancy.
5. Comparative Jurisprudence
The United Kingdom abolished the marital rape immunity in R v. R (1991), affirming that marriage does not imply perpetual consent. Nepal criminalised marital rape in 2002, and Bhutan followed in 2004. These nations demonstrate that societal stability is not threatened by recognizing spousal consent as legally significant.
Gender Justice and Bodily Autonomy
The jurisprudence of gender justice is rooted in dismantling structures that reinforce inequality. The marital rape exception not only perpetuates gender hierarchy but also legitimises violence within the home. The concept of bodily autonomy recognizes that every person — irrespective of gender or marital status — has an inviolable right over their body.
The refusal to criminalise marital rape perpetuates what feminist scholars describe as the “private-public dichotomy,” where domestic spaces are considered outside the realm of legal accountability. However, the Constitution does not end at the doorstep of marriage; its protection extends into the household.
Psychological and Societal Impact
Marital rape causes profound physical and psychological trauma, often leading to depression, anxiety, and post-traumatic stress disorder. The silence surrounding it compounds the victim’s suffering. Social stigma, economic dependency, and cultural expectations prevent women from reporting abuse.
Recognising marital rape as a crime would not only offer legal recourse but also transform social attitudes by affirming that consent is central to all sexual relations, irrespective of marital status.
Towards Legislative Reform
The path forward requires the Parliament to amend Section 375 IPC by deleting Exception 2. Simultaneously, safeguards must be incorporated to prevent misuse and ensure due process. The Criminal Law (Amendment) Bill 2019, which proposed gender-neutral language and recognised marital rape, remains pending.
Comprehensive reform should also include:
Expansion of marital rape under the Domestic Violence Act (2005) to allow both civil and criminal remedies.
Establishment of dedicated counselling and support centres for victims.
Judicial training to handle sensitive issues of consent within marriage.
Public awareness campaigns challenging the myth that marriage equals unconditional consent.
Conclusion
The criminalisation of marital rape is not a threat to marriage — it is a safeguard for human dignity within marriage. The institution of marriage derives legitimacy from the equality of its partners, not from the subordination of one to the other. A society that values women as equal citizens cannot condone a law that allows their violation under the guise of matrimony.
To uphold constitutional morality, India must align its criminal jurisprudence with its constitutional ethos. The right to say no cannot be extinguished by the act of marriage. The continued existence of Exception 2 to Section 375 is a constitutional anomaly that undermines the very foundations of justice, equality, and liberty.
It is time to affirm — through law and conscience — that consent matters, always and everywhere.
Frequently Asked Questions (FAQ)
1. What is marital rape?
Marital rape refers to sexual intercourse by a husband with his wife without her consent. It constitutes rape in moral and legal terms, even though Indian law currently exempts husbands from punishment.
2. Is marital rape punishable in India?
No. Under Exception 2 to Section 375 IPC, a husband cannot be prosecuted for raping his adult wife. However, forced sexual acts may attract charges under other provisions such as Section 498A IPC (cruelty) or the Domestic Violence Act.
3. Why should marital rape be criminalised?
Because it violates a woman’s fundamental rights to equality, dignity, privacy, and bodily autonomy. Marriage cannot justify the denial of consent.
4. Will criminalisation destroy the institution of marriage?
No. Recognising marital rape protects the sanctity of marriage by ensuring it is built on mutual respect, not coercion. Laws against domestic violence have not destroyed marriage; they have strengthened it by ensuring accountability.
5. What are India’s international obligations?
India is a signatory to CEDAW and the Universal Declaration of Human Rights, both of which mandate protection of women’s bodily integrity and equality before law.
6. How can the law be reformed?
By deleting Exception 2 to Section 375, introducing explicit recognition of marital rape, ensuring procedural safeguards, and implementing public-awareness initiatives that challenge patriarchal norms.
7. What is the current judicial status?
The Delhi High Court’s split verdict in RIT Foundation v. Union of India (2022) has referred the issue to the Supreme Court. The final judgment will determine whether marital rape becomes an offence in India.
