Author: Roqaiya Fatma, Aligarh Muslim University
Abstract
The issue of marital rape – when a husband forces sexual intercourse upon his wife without consent this continues to exist in a legal gray area within India’s judicial system. Even though India’s Constitution promises equal rights, dignity, and freedom for all citizens, the current legal framework still protects married men from being prosecuted for sexually assaulting their wives. The marital rape exception in Indian law , which found in Exception 2 of the Section 375 of the Indian Penal Code (IPC) ,comes from outdated colonial-era thinking. This exception does not fit with today’s democratic values, where every person has the right to life, dignity and equality. Because of this exception, a husband cannot be punished for raping his wife, which allows such serious crimes to go unpunished and denies women the basic right to say no, even in a marriage.
This article explains where this exception came from historically, how it goes against our Constitution, and discusses court judgments that have supported the need for change. The article also looks at how other countries have made laws against marital rape. Its main message is that a wife’s consent should be treated the same as any other woman’s consent. Ignoring marital rape in the law is not just a mistake , meanwhile it’s a serious violation of a woman’s basic rights. The article urges the government and the courts to take strong and quick steps to stop this kind of violence against women.
To The Point
In India, marital rape is not considered a crime because of the law under Exception 2 of Section 375 of the Indian Penal Code. This law says that if a man has sex with his wife who is 18 or older, it cannot be called rape. This means that after marriage, a woman’s right to say “no” is not legally accepted. The idea that marriage means a woman always agrees to sex comes from old and unfair beliefs and which does not belong in the modern legal system that should protect every person’s dignity and equality.
Even with constitutional guarantees of equality through Article 14, protection from discrimination via Article 15, and rights to life and personal freedom under Article 21, the law still treats married women differently when it comes to protection from sexual violence. This exception isn’t just unfair discrimination – it’s fundamentally wrong because it creates a legal myth where marriage’s importance is placed above individual autonomy. While Indian courts have developed forward-thinking approaches on privacy, sexual autonomy, and gender equality issues, the actual laws haven’t caught up, leaving countless women without legal options when their husbands force sexual relations upon them. The ongoing existence of this marital rape exception represents a constitutional and human rights emergency that requires urgent attention.
Use of Legal Jargon
The conversation about why marital rape isn’t criminalized connects closely with several important legal principles and ideas. The coverture doctrine, which came from English common law, once meant that a wife’s legal identity disappeared into her husband’s when they married. This idea came from the old belief that a wife must always agree to have sex with her husband as part of her duties in a marriage. In many democratic countries, this belief has been removed from the law. But in India, some part of this thinking still remains through the marital rape exception in the legal system.
Another major issue is the assumption of consent—the wrong belief that marriage means a woman has given lifelong and automatic permission for sex. This idea goes against the woman’s right to control her own body, which is part of her right to life and personal freedom under Article 21 of the Constitution. Giving legal protection to husbands in rape cases takes away the idea of gender equality and allows violence within marriage by shielding the offender.
Indian courts have started using the idea of constitutional morality, which means laws should follow the values of the Constitution, not outdated social traditions. When we look at the marital rape exception through this lens, it clearly violates the principles of equality, dignity, and personal freedom. Important court rulings like Justice K.S. Puttaswamy v. Union of India, which upheld the right to privacy, also supported the idea that a woman has the right to control her body even in marriage. These legal ideas are not just for textbooks—they are powerful tools to question and remove laws that allow marital rape.
The Proof
The idea behind the marital rape exception comes from a belief made in the 18th century by Sir Matthew Hale, who said that a husband cannot rape his wife because marriage means she has given him permanent permission for sex. This outdated thinking became part of the Indian law during British rule, especially through the Indian Penal Code of 1860. But over time, as societies grew more equal, most democratic countries changed their laws to recognize the women’s rights and made marital rape a crime. India, however, has not changed this law and still follows a belief that no longer matches what women actually go through.
According to the National Family Health Survey-5 (2019–2021), many women have faced sexual violence from their husbands. But because of the marital rape exception, these acts are not seen as crimes under the law, and many women are forced to stay silent. Even the National Crime Records Bureau (NCRB) does not collect data on marital rape, which keeps this issue hidden from public awareness. Just because the law doesn’t recognize it doesn’t mean it’s not happening—it only means the harm is being ignored by the system.
India has signed international agreements like the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which asks all countries to stop all types of violence against women, including sexual and domestic violence within marriage. The United Nations Committee has told India many times to make marital rape a crime, but Indian leaders have mostly ignored these requests. This shows that there is a lack of political courage and willingness to face the reality of violence within marriages.
Case Laws
Although the Supreme Court has not yet directly struck down the marital rape exception, many important rulings have laid the foundation for treating marital rape as a crime.
In the case of Independent Thought v. Union of India, the Court said that marital rape laws cannot apply to child brides between the ages of 15 and 18, as it violates their right to life under Article 21 and the POCSO Act. This judgment is important because it shows that being married does not give automatic permission for sex, especially when it harms the girl’s dignity and bodily rights.
In Joseph Shine v. Union of India, the Court removed Section 497 of the IPC (the law on adultery), saying it was based on old-fashioned and patriarchal thinking and treated women like property of their husbands. .The Court said that laws should respect equality, dignity, and personal freedom, and that laws must change with time. Even though the case was not about marital rape, the reasoning clearly supports removing the marital rape exception.
In Suchita Srivastava v. Chandigarh Administration, the Court said that a woman has the right to make decisions about her own body and pregnancy, and this is part of her freedom under Article 21 of the Constitution. The judgment made it clear that a woman’s privacy, dignity, and control over her body must be respected—even in marriage.
In State of Karnataka v. Krishnappa, the Supreme Court said that rape is more than just a physical act—it is a serious violation of a woman’s dignity and personal freedom.
The Court acknowledged that sexual violence deeply harms a woman’s autonomy.
When we put all these judgments together, they clearly show that the Constitution does not support protecting marital rape. In fact, these rulings strongly go against the idea that a husband should be legally allowed to rape his wife.
Conclusion
The persistent legal tolerance for marital rape in India clearly demonstrates the wide gap that exists between what our Constitution promises and what our actual laws deliver. Although India’s Constitution pledges equality, respect, and liberty for every citizen, current legislation continues to treat marriage as a license that allows husbands to disregard their wives’ personal autonomy.The marital rape exception in Section 375 of the Indian Penal Code is based on old patriarchal beliefs that treat women as less important than their husbands and take away their right to say no within marriage.
Changing this law is no longer just a topic for debate—it has become a constitutional need to protect women’s rights, dignity, and freedom. Eliminating Exception 2 from Section 375 IPC represents the initial move toward acknowledging that mutual agreement remains crucial in every sexual encounter, irrespective of whether people are married. Yet merely altering legislation won’t be sufficient. Society needs comprehensive transformation that confronts traditional beliefs about male privilege and normalizes discussions regarding sexual agreement within matrimonial relationships. Courts, lawmakers, and community organizations must collaborate to establish both legal and social frameworks where women never have to suffer sexual abuse in silence just because they happen to be wed to their attackers.
FAQs
Q1. Is marital rape recognized as a criminal offence in India?
Currently, marital rape does not qualify as a criminal offense within India’s legal framework. Exception 2 found in Section 375 of the Indian Penal Code, dating back to 1860, declares that sexual relations between spouses cannot be classified as rape, provided the wife has reached eighteen years of age. This legal protection allows husbands to avoid punishment if they force their wives to have sex, treating marriage as a permanent and automatic yes. While the Protection of Women from Domestic Violence Act, 2005 gives women some civil remedies, it does not treat marital rape as a crime or apply the strict punishments that regular rape laws do.
Q2. Does the Constitution of India allow such an exception for married women?
This marital rape exemption stands in direct opposition to India’s Constitutional principles. Articles 14, 15, and 21 ensure equal treatment under law, prevent gender-based discrimination, and protect individual rights to life and personal freedom. Continuing to exclude married women from rape law coverage establishes an unreasonable and prejudicial categorization. Our Constitution prohibits refusing legal protection based solely on matrimonial circumstances. This exemption damages constitutional ethics, which demand that legislation evolve in harmony with constitutional principles rather than outdated social traditions.
Q3. Can a wife file any legal complaint if she is subjected to forced sex by her husband?
Although wives cannot initiate criminal rape charges against their spouses because of this legal exemption, they might pursue relief through other legal channels. Section 498A of the IPC offers penalties for spousal cruelty or abuse from in-laws, covering both psychological and physical damage. Furthermore, the Protection of Women from Domestic Violence Act of 2005 provides civil solutions including restraining orders, housing arrangements, and financial compensation. Nevertheless, these alternatives fail to recognize the criminal nature of rape and cannot deliver the punitive justice that such serious violations deserve.
Q4. Has the Indian judiciary taken any steps toward recognizing marital rape as a legal wrong?
Indeed, while no court has explicitly ruled marital rape as unconstitutional, India’s judicial system has progressively acknowledged how vital consent, independence, and respect become within personal relationships. During Independent Thought v. Union of India, the Supreme Court narrowed the marital rape exemption by ruling that sexual contact with underage wives constitutes rape. In Joseph Shine v. Union of India, the Court removed adultery as a crime, highlighting that women do not belong to their husbands while strengthening the concept of sexual independence. These decisions, combined with Suchita Srivastava and Puttaswamy cases, have built the legal groundwork for future judicial removal of Exception 2 from Section 375 IPC.
Q5. Have any Indian High Courts recently addressed the issue of marital rape?
Indeed, during 2022, the Delhi High Court examined multiple petitions questioning whether the marital rape exemption violates constitutional principles. The Court delivered a divided verdict, with Justice Rajiv Shakdher declaring the exemption unconstitutional, while Justice C. Hari Shankar supported maintaining it. As a result, this matter has moved up to the Supreme Court, which holds authority to make the ultimate determination about whether Exception 2 to Section 375 IPC breaches Constitutional requirements. This upcoming case offers an important chance for the judicial system to close a substantial loophole in India’s sexual assault legislation.
