Author: Zoya Tabassum, gurughasidas central university
Abstract
Marital rape defined as non-consensual sexual intercourse by a husband with his wife remains one of the most controversial and under-addressed issues in Indian criminal jurisprudence. Despite constitutional guarantees of equality before law and the right to personal liberty under Articles 14 and 21 of the Indian Constitution, the Indian Penal Code, 1860 (IPC) still protects husbands from prosecution through Exception 2 to Section 375, which exempts marital acts from the definition of rape, provided the wife is not under fifteen years of age.
This statutory exception continues to reflect patriarchal notions that marriage implies perpetual consent and negates the concept of bodily autonomy. The persistence of such a colonial era provision conflicts with India’s modern constitutional vision and its international commitments under conventions such as CEDAW.
This article argues that the non-criminalisation of marital rape is unconstitutional and incompatible with the principles of equality, dignity, and liberty. It analyses the historical and legal background of marital rape, the constitutional framework under Articles 14 and 21, and the evolving judicial interpretations that strengthen women’s rights within marriage. Ultimately, it asserts that recognising marital rape as an offence is not only a legislative need but a constitutional necessity to uphold the ideals of justice and gender equality.
Introduction
The issue of marital rape in India epitomises the tension between personal liberty and societal tradition. The Constitution of India upholds equality, dignity, and autonomy as the cornerstones of democracy, yet the criminal law framework continues to deny married women protection from sexual violence by their husbands. This contradiction arises from Exception 2 to Section 375 of the IPC, which provides that sexual intercourse by a man with his own wife, if she is not under fifteen years of age, shall not constitute rape.
This exception is a colonial vestige rooted in the British common law doctrine of coverture, where a woman’s legal existence merged with her husband’s upon marriage. Under this doctrine, a wife was deemed to have given perpetual consent to sexual intercourse, rendering the very idea of marital rape legally impossible. Ironically, while the United Kingdom itself abolished this exception in R v. R (1991), India still clings to this outdated legal fiction.
The constitutional inconsistency becomes evident when viewed through the lens of Articles 14 and 21. Article 14 guarantees equality before the law and equal protection of laws, while Article 21 guarantees the right to life and personal liberty, which includes dignity, privacy, and bodily autonomy. The marital rape exception discriminates on the basis of marital status and violates these fundamental rights by excluding married women from legal protection against sexual violence.
This article, therefore, seeks to explore whether the continued existence of Exception 2 to Section 375 is compatible with Articles 14 and 21 of the Constitution. It employs a doctrinal and analytical methodology, examining statutes, constitutional provisions, judicial precedents, and comparative international frameworks to establish that criminalising marital rape is not a matter of morality but a constitutional duty.
Historical and Legal Background of Marital Rape in India
Colonial Origins of Section 375 IPC
The Indian Penal Code, 1860 was drafted under British colonial rule, primarily by Lord Macaulay. Its structure was influenced heavily by Victorian morality and the English common law system, which considered wives as the property of their husbands. The presumption of perpetual consent within marriage was explicitly embedded in Indian law through Exception 2 to Section 375, reflecting colonial-era assumptions that women had limited agency or ownership over their own bodies.
Under British law, this principle was based on Sir Matthew Hale’s infamous statement in the 17th century that “a husband cannot be guilty of rape committed by himself upon his lawful wife.” This notion was carried into colonial India without consideration for evolving human rights or gender equality.
Evolution of Consent in Indian Criminal Law
Over the years, Indian criminal law has witnessed significant reform concerning sexual offences, yet the concept of consent in marriage remains legally ambiguous. The Criminal Law (Amendment) Act, 2013, enacted after the Nirbhaya case, redefined rape, expanded the scope of sexual offences, and made consent the cornerstone of the law. However, the government chose to retain Exception 2, thereby creating a paradox where consent is central to sexual relations outside marriage but irrelevant within it.
This selective recognition of consent undermines the universal applicability of criminal law. It suggests that a woman’s autonomy ceases upon marriage, violating her fundamental rights and reducing her to an object of marital entitlement rather than an individual with agency and dignity.
Constitutional Framework: Articles 14 and 21
Article 14: Equality Before Law and Equal Protection of Laws
Article 14 of the Constitution of India guarantees that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” The marital rape exception clearly violates this guarantee. By excluding married women from the protection afforded to unmarried women, it creates an irrational classification based solely on marital status.
Equality before the law does not merely require formal parity but substantive justice. As Justice Bhagwati observed in EP Royappa, equality is a dynamic concept aimed at ensuring fairness and preventing arbitrary discrimination. The marital rape exception, by denying legal redress to one class of women, amounts to state-sponsored inequality.
Article 21: Right to Life, Dignity, and Bodily Autonomy
Article 21 provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” Judicial interpretation has expanded this provision to encompass the right to dignity, privacy, and bodily integrity. In Maneka Gandhi v. Union of India (1978), the Supreme Court held that the right to life includes the right to live with dignity and free from exploitation.
The right to bodily autonomy has since been recognised as intrinsic to Article 21. In Justice K.S. Puttaswamy v. Union of India (2017), the Supreme Court affirmed that privacy includes autonomy over one’s body and intimate choices. Similarly, in Suchita Srivastava v. Chandigarh Administration (2009), the Court held that reproductive and sexual autonomy are essential components of personal liberty.
By denying women the right to withhold consent within marriage, the marital rape exception violates the essence of Article 21. It negates the fundamental principle that every individual, irrespective of marital status, has the right to bodily integrity and sexual agency. The law, in effect, legitimises sexual violence under the guise of marital privilege, stripping married women of their constitutional right to life with dignity.
Judicial Approach and Landmark Cases
The Indian judiciary has, over time, cautiously approached the question of marital rape, often avoiding a direct confrontation with the constitutional validity of Exception 2 to Section 375 IPC. However, a gradual judicial shift towards recognising women’s autonomy and dignity within marriage can be traced through several landmark judgments.
Independent Thought v. Union of India (2017)
In this case, the Supreme Court examined the constitutional validity of the exception clause in Section 375 that permitted sexual intercourse with a wife aged between fifteen and eighteen years. The Court read down the exception, holding that sexual intercourse with a minor wife below eighteen years amounts to rape.
Though the judgment was confined to child marriage, the Court’s reasoning laid an important foundation. Justice Madan B. Lokur observed that the distinction between married and unmarried women in matters of sexual consent violates Article 14. The Court emphasised that a child’s dignity and bodily integrity cannot be compromised merely because of her marital status, thereby implicitly questioning the constitutional soundness of the broader marital rape exception.
Joseph Shine v. Union of India (2018)
In this landmark case decriminalising adultery under Section 497 IPC, the Supreme Court reaffirmed that marriage does not mean ceding one’s autonomy. The Court struck down Section 497 for being discriminatory and violative of Articles 14, 15, and 21.
Justice D.Y. Chandrachud’s concurring opinion is particularly significant; he asserted that the constitutional guarantee of dignity applies equally to married women, and “the law cannot compel submission where consent is absent.” The reasoning in Joseph Shine directly challenges the rationale behind retaining the marital rape exception, as both involve outdated notions of male control over women’s sexuality within marriage.
State of Karnataka v. Krishnappa (2000)
The Supreme Court in Krishnappa held that sexual violence, whether within or outside marriage, constitutes a violation of a woman’s bodily integrity and amounts to cruelty. The Court stated that rape is not only a physical assault but a violation of the victim’s most cherished fundamental right to life and liberty. Although the case dealt with rape outside marriage, its moral and constitutional reasoning applies equally to marital rape, strengthening the case for its criminalisation.
Arguments in Favour of Criminalisation
Violation of Fundamental Rights
The marital rape exception violates Article 14 by creating an arbitrary classification and Article 21 by denying the right to bodily autonomy and dignity. It further contravenes Article 15(1), which prohibits discrimination based on sex. The presumption that a wife’s consent is irrevocably granted through marriage negates her status as an equal citizen under the Constitution.
Justice and Gender Equality
Criminalising marital rape is essential to achieving substantive gender equality. The Supreme Court has consistently held that gender justice is intrinsic to constitutional morality. In Vishaka v. State of Rajasthan (1997), the Court linked gender equality to the right to life under Article 21, establishing that any form of sexual coercion violates human dignity. Denying married women protection against rape perpetuates patriarchal dominance, contrary to the Constitution’s egalitarian spirit.
Counterarguments and Challenges
Fear of Misuse
A common argument against criminalisation is the fear of false accusations. However, this claim is unsubstantiated. The misuse of law cannot justify denying legal protection to genuine victims. Every criminal provision—whether for theft, dowry, or domestic violence—is susceptible to misuse, yet that risk has never been a reason to withhold justice.
Preservation of Marital Sanctity
Opponents argue that criminalising marital rape would destabilise the institution of marriage. This reasoning is flawed. Marriage, under constitutional morality, is a union of equals, not a licence for sexual subjugation. The sanctity of marriage cannot be preserved by legalising violence within it. Rather, true sanctity arises from mutual respect and consent.
Legislative Reluctance
The government’s repeated hesitation stems from political and cultural sensitivity around marriage. Yet, as the Supreme Court observed in Vineet Narain v. Union of India (1998), when legislative inertia undermines fundamental rights, the judiciary must step in to uphold constitutional values. The issue of marital rape is no exception.
Evidentiary Difficulties
Another challenge often cited is the difficulty of proving lack of consent within marriage. However, such evidentiary challenges are not unique to marital rape and exist in all sexual offence cases. The justice system must develop sensitive and survivor-centric evidentiary standards, not deny justice by refusing to recognise the offence.
Comparative Perspective: Lessons from Foreign Jurisdictions
United Kingdom
The UK abolished marital rape immunity in R v. R (1991), where the House of Lords held that marriage does not imply irrevocable consent. The Court declared that such immunity was “anachronistic and offensive to modern notions of equality.”
United States
In the United States, all 50 states have criminalised marital rape, though penalties vary. Judicial recognition evolved through constitutional interpretations of privacy and equal protection. The transformation reflected the understanding that marriage cannot legitimise violence or negate individual autonomy.
These jurisdictions demonstrate that criminalising marital rape strengthens, rather than weakens, the institution of marriage by basing it on mutual respect and equality.
Conclusion
The persistence of the marital rape exception in Indian law stands as a stark contradiction to the nation’s constitutional ethos. By excluding married women from the protection of rape laws, the State legitimises sexual violence and perpetuates gender inequality. The exemption undermines Article 14’s promise of equal protection and Article 21’s assurance of dignity and autonomy.
The constitutional jurisprudence developed in cases such as Maneka Gandhi, Joseph Shine, Navtej Johar, and Puttaswamy clearly establishes that autonomy and consent are central to personal liberty. Retaining Exception 2 to Section 375 IPC disregards this settled principle and sustains patriarchal structures incompatible with constitutional democracy.
Ultimately, criminalising marital rape is not an attack on marriage—it is an affirmation of equality and human dignity. The Constitution envisions a society where every individual, irrespective of marital status, enjoys autonomy over their body and freedom from coercion. True justice demands that the law recognise what morality and humanity already know: consent cannot be presumed, even within marriage.
Frequently Asked Questions (FAQ)
1. What is the current legal status of marital rape in India?
Under Exception 2 to Section 375 of the Indian Penal Code (IPC), sexual intercourse by a man with his own wife, if she is not under fifteen years of age, is not considered rape. This means marital rape is not criminalised in India unless the wife is below 18 years, as held in Independent Thought v. Union of India (2017) 10 SCC 800.
2. Why is Exception 2 to Section 375 IPC considered unconstitutional?
Exception 2 violates Articles 14 and 21 of the Indian Constitution. It discriminates against married women by denying them equal legal protection and undermines their rights to dignity, bodily autonomy, and privacy.
3. Has any court recognised marital rape as unconstitutional?
The Delhi High Court, in RIT Foundation v. Union of India (2022), delivered a split verdict—Justice Shakdher declared the exception unconstitutional, while Justice Hari Shankar upheld it. The matter is now before the Supreme Court, which has reserved judgment.
4. What is the stance of the Justice J.S. Verma Committee (2013)?
The Justice Verma Committee, formed after the 2012 Nirbhaya case, strongly recommended that the marital rape exception be deleted. It stated that consent is a legal necessity regardless of marital status and that marriage cannot be a defence for sexual assault.
References
Cases:
Independent Thought v. Union of India, (2017) 10 SCC 800.
RIT Foundation v. Union of India, W.P. (C) No. 284/2015 (Delhi HC 2022).
Queen Empress v. Haree Mythee, (1891) ILR 18 Cal 49.
R v. R, [1991] 1 All ER 747 (HL).
Joseph Shine v. Union of India, (2019) 3 SCC 39.
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
Suchita Srivastava v. Chandigarh Administration, (2009) 9
Books and Articles:
Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (Oxford Univ. Press 1999).
Rukmini Sen, “Revisiting Marital Rape Exception in India: Constitutional and Feminist Perspectives,” Indian Journal of Gender Studies, Vol. 29, No. 1 (2022).
Shreya Atrey, “Constitutional Morality and Women’s Autonomy in India,” Oxford Human Rights Hub Journal (2021).
