Author: Naina Naik, Jitendra Chauhan College of Law
To the Point
Marital rape is not considered a crime in India, even though it is seen worldwide as a major violation of a woman’s bodily autonomy. This article looks at the legal gap, constitutional issues, and the urgent need for change.
Abstract
This article takes a critical look at marital rape in India, focusing on the conflict between personal laws and constitutional values. It explores how the idea of consent has developed in Indian law, the global context, relevant case law, and ongoing legal struggles. The goal is to highlight the legal invisibility of marital rape and push for its criminalization in line with basic rights
Use of Legal Terms.
Consent
Bodily Autonomy
Article 14 – Right to Equality
Article 21 – Right to Life and Personal Liberty
Exception 2 to Section 375 IPC
Non-consensual intercourse
De facto vs. de jure rights
Criminal law
Patriarchal presumption
The Proof
India is one of the few democratic nations where marital rape is not a crime, thanks to Exception 2 of Section 375 IPC. This protects husbands from being prosecuted for raping their wives as long as the wife is not under 18. However, international organizations like CEDAW and UNHRC have repeatedly called on India to make it a crime. Surveys indicate that many Indian women face forced sex in marriage, but the lack of legal options keeps them silent.
Case Laws
1. Independent Thought v. Union of India (2017)
The Supreme Court limited Exception 2 of Section 375 IPC to make child marital rape a crime.
2. Suchita Srivastava v. Chandigarh Administration (2009)
This case recognized a woman’s right to bodily autonomy and reproductive choices.
3. State of Karnataka v. Krishnappa (2000)
Rape was defined as a crime of violence and a violation of dignity.
4. Joseph Shine v. Union of India (2018)
This ruling decriminalized adultery, stating that marriage does not strip away individual autonomy.
Conclusion
The exception that allows marital rape is a remnant of colonial patriarchy. In a modern democracy that values constitutional principles, the legal system must acknowledge a wife’s right to refuse sex within marriage. Marital rape should be criminalized not only to meet international standards but also to provide a voice, justice, and dignity to millions of Indian women.
FAQS
Q1: Is marital rape a criminal offense in India?
No, it is currently not recognized as a crime under the IPC, except in cases involving minors.
Q2: Is there any ongoing litigation or debate on this issue?
Yes, several public interest litigations have been filed in the Delhi High Court and Supreme Court to challenge Exception 2 to Section 375 IPC.
Q3: Why is there resistance to criminalizing marital rape?
Concerns include fears of misuse, preserving the sanctity of marriage, and overlaps with domestic violence laws. However, these issues often overlook the rights of survivors.
Q4: Which countries have criminalized marital rape?
More than 100 countries, including the US, UK, France, and Nepal, recognize marital rape as a criminal offense.
