Author: Sukkhdev Dawar, CPJ College, GGSIPU
To the Point
Marital rape refers to non-consensual sexual intercourse by a husband with his wife. In India, such conduct continues to be excluded from the definition of rape due to Exception 2 to Section 375 of the Indian Penal Code, which assumes irrevocable consent once a woman enters into marriage. This legal exception is based on colonial-era notions that treat marriage as a permanent consent to sexual relations, irrespective of the woman’s will.
In contemporary society, this assumption appears deeply problematic. Marriage, while a socially significant institution, cannot override an individual’s right to bodily autonomy, dignity, and free consent. The debate on criminalising marital rape has gained momentum due to increasing awareness of women’s rights, judicial recognition of privacy and autonomy, and India’s international obligations. This article examines whether the marital rape exception is constitutionally valid and whether its continuance is justified in a modern democratic society governed by the rule of law.
Use of Legal Jargon
The marital rape exception is rooted in the archaic doctrine of implied consent, derived from common law principles that viewed a wife as subordinate to her husband under the doctrine of coverture. Such a framework presumes that a woman surrenders her sexual autonomy upon marriage, a notion that is incompatible with modern constitutional jurisprudence.
Contemporary legal discourse recognises bodily autonomy, decisional privacy, and human dignity as intrinsic elements of the right to life and personal liberty under Article 21 of the Constitution. The marital rape exception also fails the test of reasonable classification under Article 14, as it creates an artificial distinction between married and unmarried women without any intelligible differentia or rational nexus. Further, by legitimising forced sexual intercourse within marriage, the exception violates the principle of substantive due process and perpetuates gender-based discrimination.
The Proof
Empirical data strongly supports the need for criminalising marital rape. According to reports published under the National Family Health Survey (NFHS), a substantial percentage of married women in India experience sexual violence within their homes. However, due to the marital rape exception, such acts remain outside the purview of criminal law, leaving victims without effective legal remedies.
India is also a signatory to several international human rights instruments, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The CEDAW Committee has repeatedly urged India to criminalise marital rape and recognise it as a form of gender-based violence. Additionally, comparative legal analysis reveals that several jurisdictions such as the United Kingdom, United States, Canada, Australia, and South Africa have already criminalised marital rape, acknowledging that consent must be present in every sexual act, irrespective of marital status.
Concerns regarding misuse of law or potential impact on the institution of marriage cannot outweigh the fundamental rights of women. Adequate procedural safeguards already exist within criminal law to prevent false accusations. The denial of legal protection to married women merely reinforces patriarchal norms and undermines constitutional morality.
Abstract
Marital rape continues to be one of the most debated and unresolved issues in Indian criminal jurisprudence. Despite constitutional guarantees of equality, dignity, and personal liberty, Indian law exempts marital rape from criminal liability under Exception 2 to Section 375 IPC. This article critically analyses the concept of marital rape and evaluates the constitutional validity of the marital rape exception in light of Articles 14, 15, and 21 of the Constitution of India. Through an examination of judicial precedents, statistical data, international obligations, and comparative legal frameworks, the article argues that the continued existence of the marital rape exception is inconsistent with constitutional principles and global human rights standards. The article concludes that criminalising marital rape is essential to ensure substantive gender justice and uphold constitutional morality.
Case Laws
1. Independent Thought v. Union of India (2017)
In this landmark judgment, the Supreme Court read down Exception 2 to Section 375 IPC to the extent that sexual intercourse with a wife below 18 years of age would amount to rape. The Court observed that marriage cannot be treated as a license to violate a woman’s bodily integrity and autonomy. This decision significantly weakened the doctrinal basis of implied consent within marriage.
2. Justice K.S. Puttaswamy v. Union of India (2017)
The Supreme Court recognised the right to privacy as a fundamental right under Article 21. The judgment emphasised that privacy includes bodily autonomy, decisional freedom, and personal dignity. Forced sexual relations within marriage directly violate these constitutional protections, thereby strengthening the argument for criminalising marital rape.
3. State of Karnataka v. Krishnappa (2000)
The Court held that sexual violence constitutes an unlawful intrusion into a woman’s right to privacy and dignity. Although the case did not directly address marital rape, the principles laid down clearly affirm that sexual autonomy is an essential aspect of personal liberty.
4. Joseph Shine v. Union of India (2018)
While striking down Section 497 IPC (adultery), the Supreme Court recognised the autonomy and dignity of married women. The judgment rejected the notion of women as property of their husbands, indirectly supporting the argument against the marital rape exception.
Conclusion
The marital rape exception under Indian law is a vestige of colonial and patriarchal thinking that fails to align with contemporary constitutional values. Marriage cannot be a justification for denying a woman her right to consent, dignity, and bodily autonomy. The exception creates unjustifiable discrimination between married and unmarried women and violates Articles 14 and 21 of the Constitution.
Criminalising marital rape would not erode the institution of marriage; rather, it would strengthen it by promoting equality, mutual respect, and accountability. Legislative intervention is urgently required to remove the marital rape exception and ensure that Indian criminal law reflects constitutional morality, gender justice, and international human rights commitments.
FAQS
1. Is marital rape a criminal offence in India?
No, marital rape is not criminalised in India due to Exception 2 to Section 375 IPC, except when the wife is below 18 years of age.
2. Why is marital rape not criminalised in India?
The exception is based on outdated notions of implied consent within marriage and concerns regarding misuse of criminal law.
3. Does marital rape violate fundamental rights?
Yes, it violates the right to equality, dignity, privacy, and personal liberty guaranteed under Articles 14 and 21 of the Constitution.
4. Have Indian courts addressed marital rape?
While courts have not fully criminalised marital rape, judgments such as Independent Thought, Puttaswamy, and Joseph Shine have laid the constitutional foundation for reform.
5. What is the way forward?
Legislative reform is necessary to remove the marital rape exception and recognise consent as central to all sexual relationships, including marriage.
