AUTHOR – Arohi Jain, Renaissance Law College
ABSTRACT
Independent Thought v. Union of India (2017), where the Court criminalised sex with: “Marital rape, defined as non-consensual sexual intercourse by a husband with his wife without her consent, remains one of the most controversial and under-addressed issues in India. Despite being recognised as a criminal offence in numerous countries worldwide, Indian law continues to provide immunity to husbands under Exception 2 to Section 375 of the Indian Penal Code (IPC), which explicitly excludes marital rape from the definition of rape, unless the wife is under 18 years of age. This legal exception is rooted in colonial-era beliefs and patriarchal constructs that view marriage as irrevocable consent to sex. Such a provision not only contradicts the constitutional guarantees of equality, dignity, and personal liberty enshrined in Articles 14, 15, and 21 of the Indian Constitution but also disregards India’s international human rights obligations, including those under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The social stigma, victim-blaming, and cultural norms surrounding marriage often silence survivors of marital rape, leaving them with limited legal recourse or institutional support. While the Protection of Women from Domestic Violence Act, 2005, offers some civil remedies against sexual abuse within marriage, it lacks the punitive power of the criminal justice system to adequately address the gravity of rape. This abstract explores the intersectionality of law, society, and gender justice in the context of marital rape. This also highlights the demand for reform from women activists and civil society. Further, this was examined in the landmark case law as independent thought vs the Union of India, where the court has criminalised forced intimacy of a minor wife and also challenged the constitutionality provided in the exception of rape under section 375 of the IPC and under the new criminal law BNS section 63.
INTRODUCTION
Rape is a heinous crime as it is a forced sexual intercourse against any person without the consent of such person. Despite being a criminal offence under Article 375 of the IPC, marital rape falls under the exception 2 of Article 375 as it violates fundamental rights such as Article 14, 15 and 19(1). This exception retained the same position under the new criminal law; it is only considered for the ground of divorce. This exception dates back to the colonial era and the outdated doctrine of coverture, which was viewed as the wife being the property of the husband, and he had all control over him. Even after discriminatory grounds and violation of human rights, only 51 countries have made provision against the offence and considered marital rape as a punishable offence. In India and other South Asian countries, marriage is still considered a social invent and it is still an exception in law. According to the UN Population Fund, every third woman from 13- 49 of age is beaten and forced into sex, and this rate is increased during the pandemic period.
USE OF LEGAL JARGON
The forced sexual activities within a marriage are unquestionably a violation of women’s dignity, yet the law still provides only limited criminal recourse. After the landmark judgement in the case of independent thought vs Union of India, the Supreme Court made forced sexual intercourse with spouses under the age of 15, which was increased to 18 years, a criminal offence and aligned with the Protection of Children from sexual offences act. However, the wives above the age of 18 remained unprotected, which means that the husband cannot be prosecuted for rape even after forcing their partners, and it only remains the ground of divorce under section 13 B of the Hindu Marriage Act 1955. However, it fails to provide legal protection to women and violates their fundamental and legal rights. This exception creates discrimination based on marital status and classifies between married and unmarried women as unmarried women have full protection from all sexual offences, but married women are simply virtues by their married status. This exception violates Article 15 as creating an unequal legal regime for married women, and it directly violates the right to dignity, privacy and body integrity, which are protected under Article 21. The exception questioned the right to control on own body and the right to say no. The Supreme Court emphasised the importance of privacy and autonomy in several cases, such as K S Puttaswamy vs Union of India, and Navtej Singh Johar vs Union of India. Article 19(a) extended to sexual autonomy, the exception deprived the right to refuse from married women. Other legal provisions, such as section 498A not exclusively address the sexual nature of violence as rape and section 377 decriminalised the consensual act or unnatural act; the condition is more or less the same.
PROOF
Marital rape is not a criminal offence in India. A systematic review found that marital rape is increasing every year, ranging from 2% to 56%, while intimate partner sexual coercion can be as high as 80%. Another study based on health service records found that sexual violence in marriage often co-occurs with serious physical, reproductive and mental harm. The Indian Penal Code contains marital rape as an exception, which contradicts articles 14, 15 and 21. The exception stems from colonial-era patriarchal legal reasoning, notably the principle that marriage implies irrevocable consent, rooted in the outdated notion of wife-as-property. The new code, effective July 2024, still fails to criminalise marital rape – a decision that’s drawn sharp criticism and challenges.
CASE LAWS
1. Kuttaswamy vs Union of India – This landmark Supreme Court case, which established the right to privacy as a fundamental right, has a strong implication for the marital rape debate. The judgment recognised the right to life and liberty under Article 21 of the Constitution, which includes the right to sexual autonomy and body integrity.
2. Jospeh shine vs Union of India – the Supreme Court decriminalized adultery by striking down Article 497 of IPC. The judgement emphasises on individual autonomy and the rejection of a wife as a husband’s property is highly relevant.
3. Independent thought vs Union of India – this is the most significant case to date on the issue of marital rape. While it did not criminalise marital rape for all married women, its reasoning and verdict were a major step towards reform.
CONCLUSION
Marital rape in India is still not criminalised, and it remains an unresolved legal issue. While there’s growing international and domestic pressure to align with modern human rights standards, the non-criminal status of marital rape is upheld by an explicit legal exception. The conclusion will depend on the upcoming Supreme Court judgment, which has the potential to fundamentally redefine the rights of married women in India.
FAQS
1. Is marital rape a crime in India?
Marital rape is not a crime in India till 2025. The Indian Penal Code contains a specific provision, exception 2 to section 375, which states that sexual intercourse with a man with his own wife is not considered rape until the wife is below the age of 18
2. What is the role of the judiciary and the government?
‘The judiciary, particularly the Supreme Court, is currently examining the constitutionality of the marital rape exception. The government has taken the stance that the matter is complex and requires “wider deliberations” and that such a change should come from the legislature, not the courts. This has been seen as a way to avoid taking a direct stand on the issue.’
