Author: Riddhi Patel, a student of Dr. D.Y. Patil College of Law
To the Point
A husband sexually assaulting his wife without her consent is called marital rape. Marital rape is treated as a crime by section 375 of the Indian Penal Code. However, because of section 375 exception 2, Marital Rape is considered lawful if it occurs when a wife is over age 18 because marriage is viewed as an agreement for a husband to have unrestricted access to his wife’s body. The ongoing debate over Marital Rape highlights the troubling nature of denying women’s rights, constitutional morality and the necessity for women’s consent to remain in a relationship after they are married.
As the constitutional framework continues to evolve, emphasising dignity, autonomy and equality, the Marital Rape Exception creates tremendous moral and legal challenges. This article will analyse and critique the existing legal framework of marital rape in India, current legal questions related to Marital Rape, the numbers of marital rapes that occur, relevant comparisons in other countries, and the need for legislative reform to the extent possible.
Use of Legal Jargon
• Marital Rape Exception – The statutory immunity granted to husbands under Exception 2 to Section 375 IPC, excluding non-consensual sexual intercourse within marriage from the definition of rape.
• Implied and Irrevocable Consent – The presumption that a wife gives permanent consent to sexual relations upon marriage, a doctrine rooted in colonial jurisprudence.
• Bodily Autonomy – The right of an individual to make decisions concerning their own body without coercion or violence, recognized as part of Article 21.
• Sexual Autonomy – The freedom to make informed and voluntary decisions regarding sexual activity, including the right to refuse consent.
• Constitutional Morality – The principle that constitutional values must prevail over social morality or traditional practices.
• Substantive Due Process – The doctrine ensuring that laws affecting life and liberty must be just, fair, and reasonable.
• Reasonable Classification – A test under Article 14 to examine whether differential treatment has a rational nexus with a legitimate objective.
• Right to Privacy – A fundamental right encompassing decisional and bodily privacy, as recognized in Puttaswamy.
• Gender Justice – Legal recognition and enforcement of equality and fairness between genders, particularly in addressing structural discrimination.
• Victim-Centric Jurisprudence – An approach that prioritizes the rights, dignity, and lived experiences of survivors in criminal law interpretation.
Abstract
Marital rape represents one of the most complicated and controversial issues in India’s criminal law system as it sits at a nexus of three different laws: personal law, Criminal Law, and Constitutional Rights. The crime of rape is covered by Section 375 of the Indian Penal Code; however, the exception in Exception 2 allows husbands to have sexual relations without their wives’ consent without being prosecuted for marital rape as long as the wife is over the age of 18 years old. There are many critical constitutional issues arising out of this statutory exception, especially when considering evolving case law interpretations that relate to equality, dignity, privacy, and bodily autonomy under Articles 14 (Equality before the law) and Article 21 (Right to Life).
This Article provides an in-depth analysis of the legal framework that applies to many aspects of martial rape in India, including a discussion of the historical development of the exception in the law concerning marital rape, judicial responses to the exception, and constitutional challenges to the exemption. Additionally, this Article provides a comparative law analysis, using examples from jurisdictions that have criminalised marital rape and have developed their respective laws in accordance with international human rights standards. This Article concludes that the continued immunity afforded to men for committing marital rape is inconsistent with constitutional morality and gender justice; therefore the need for legislative reform with procedural safeguards and a greater degree of awareness and education in society is urgent.
The Proof
From the time of British colonial rule in India, a patriarchal understanding and notion of the institution of marriage have been largely responsible for an unconditional assumption of permission given by a woman at the time of marriage for her husband to have sexual relations with her. This notion has failed to view or treat women as independent persons with a right and the power to control their own bodies and make decisions about them. So the above-said belief is not supported by the Constitution in the present day.
The Constitution Article 21 gives a person the right to respect and honour, personal freedom and the right to control their own body. Any person, whether married or unmarried, who is forced to engage in sexual intercourse against their will experiences a very serious violation of such rights. The marital rape exception causes an unlawful difference and disparity between the rights of married and unmarried women and denies married women equal rights under the law and therefore violates Article 14 of the Constitution.
Judges of the courts have begun in the last several decades to begin to realise that “consent” is a major factor in sexual relationships. In Independent Thought v Union of India, the Supreme Court said that a man cannot use the marriage contract as permission to do whatever he wants with a woman’s body, and therefore ruled in favour of reading down the exception as far as it applies to minors only. Although the scope of the ruling is limited, it has greatly weakened the grounds on which the assumption of consent to sexual relations is based in marriage.
The Supreme Court has ruled that Article 21 also guarantees the right to privacy, the right to bodily autonomy, and the right to make decisions regarding one’s body (Puttaswamy v. Union of India). An individual’s right to privacy has been violated through non-consensual sexual acts within marriage. Furthermore, the acknowledgment of an individual’s sexual autonomy now makes it difficult to continue to grant immunity to marital rape.
The lack of criminalization of this abuse normalizes the prevalence of sexual violence in marriage, and thus denies survivors any recourse to effective remedies, including those provided under the Protection of Women from Domestic Violence Act, 2005. However, these civil remedies alone do not hold abusers accountable, which only serves to preserve the silence surrounding this form of sexual violence and reinforces gender inequality.
Those who argue against criminalizing marital rape, citing potential misuse of the law or the destruction of marital harmony, are making a speculation-based argument that is wholly insufficient. There are already numerous safeguards built into the criminal justice system to prevent an individual from being falsely prosecuted. No social institution or entity is exempt from criminal law, nor can marriage supersede an individual’s fundamental rights.
Case Laws
Independent Thought v. Union of India (2017)
The Supreme Court read down Exception 2 to Section 375 IPC by criminalizing sexual intercourse with a wife below eighteen years of age. The Court emphasized that marriage cannot legitimize the violation of bodily integrity and recognized the primacy of consent and dignity, thereby weakening the doctrinal basis of implied marital consent.
Justice K.S. Puttaswamy v. Union of India (2017)
This landmark judgment recognized the right to privacy as a fundamental right under Article 21, encompassing bodily autonomy, decisional freedom, and sexual privacy. The reasoning directly challenges the constitutionality of forced sexual relations within marriage.
State of Karnataka v. Krishnappa (2000)
The Supreme Court observed that sexual violence constitutes an unlawful intrusion into the privacy and sanctity of a woman, amounting to a violation of her dignity and personal liberty, regardless of the relationship between the victim and the perpetrator.
RIT Foundation v. Union of India (2022)
The Delhi High Court delivered a split verdict on the constitutional validity of the marital rape exception. One judge held the exception violative of Articles 14 and 21, while the other upheld it, reflecting the deep judicial divide and propelling the issue to the Supreme Court for final adjudication.
Comparative Law Perspective
Comparative jurisprudence reveals a global consensus rejecting the doctrine of implied marital consent.
In R v. R (1991), the UK House of Lords criminalized marital rape, declaring that marriage does not extinguish a woman’s right to refuse consent.
In the United States, all states have repealed marital rape exemptions, recognizing consent as continuous and revocable.
South Africa, through legislative reform, explicitly criminalized marital rape, holding it violative of constitutional rights to dignity and equality.
Australia has uniformly abolished marital rape exemptions across states, emphasizing bodily autonomy and consent.
International instruments such as CEDAW and the UN Declaration on the Elimination of Violence Against Women recognize marital rape as gender-based violence and urge states to criminalize it. India’s continued exception places it at odds with global human rights standards.
Way Forward
Addressing marital rape in India requires a multi-dimensional approach that balances constitutional rights, criminal justice safeguards, and social realities. Mere legislative amendment, though essential, will not be sufficient unless accompanied by institutional reform and societal sensitization.
1. Legislative Reform and Criminalization
The most crucial step is the removal of Exception 2 to Section 375 IPC, thereby recognizing non-consensual sexual intercourse within marriage as rape. The law must clearly affirm that marriage does not amount to perpetual consent. Criminalization would ensure parity between married and unmarried women and bring Indian criminal law in alignment with Articles 14 and 21 of the Constitution.
Further, the offence must be defined in gender-neutral and consent-centric terms, focusing on the absence of free and voluntary consent rather than the marital status of the parties.
2. Incorporation of Procedural Safeguards
Concerns regarding misuse of criminal law must be addressed through procedural safeguards, not by denying the existence of the offence itself. Safeguards such as:
• Preliminary judicial scrutiny before registration of FIR in exceptional cases
• Mandatory medical and psychological assessment
• Protection against arbitrary arrest
can ensure that genuine victims receive justice while preventing frivolous or malicious prosecution. These measures preserve the balance between individual rights and due process.
3. Harmonization with Existing Laws
The criminalization of marital rape must be harmonized with existing civil remedies under the Protection of Women from Domestic Violence Act, 2005. While the PWDVA provides protection orders and civil relief, it must operate alongside criminal prosecution to ensure comprehensive justice. A coordinated framework would prevent legal ambiguity and duplication of proceedings.
4. Judicial Sensitization and Interpretation
Judges and law enforcement authorities must adopt a constitution-centric and victim-sensitive approach while dealing with cases of sexual violence within marriage. Regular training and sensitization programs are essential to dismantle stereotypes surrounding marital consent and sexual entitlement. Judicial interpretation should consistently prioritize dignity, autonomy, and constitutional morality over societal norms.
5. Strengthening Victim Support Mechanisms
Survivors of marital rape often face social stigma, economic dependency, and fear of retaliation. The State must strengthen:
• Access to free legal aid
• Counseling and mental health services
• Shelter homes and rehabilitation programs
Victim-centric mechanisms are essential to ensure that legal reform translates into actual access to justice rather than symbolic change.
6. Societal Awareness and Education
Legal reform must be accompanied by long-term societal transformation. Public awareness campaigns, inclusion of consent education in school curricula, and community-level sensitization programs are necessary to challenge deep-rooted patriarchal beliefs that normalize sexual entitlement within marriage. Consent must be understood as ongoing, revocable, and essential to all intimate relationships.
7. Compliance with International Obligations
India must align its domestic laws with its international commitments under CEDAW and other human rights instruments. Periodic review mechanisms and parliamentary oversight can ensure compliance with global standards and reinforce India’s commitment to gender justice.
8. Gradual and Monitored Implementation
Given the sensitive nature of the issue, criminalization may be accompanied by phased implementation and periodic review. Data collection, impact assessment, and judicial feedback will help refine the law and address unintended consequences without diluting its core objective.
Conclusion
The continued existence of the marital rape exception reflects a fundamental disconnect between India’s constitutional guarantees and its criminal law framework. By presuming irrevocable consent within marriage, the law denies married women equal protection against sexual violence and undermines their bodily autonomy and dignity. Such a classification based solely on marital status is incompatible with Articles 14 and 21 of the Constitution, which protect equality, personal liberty, and the right to live with dignity.
Judicial developments in India, particularly those recognizing privacy, sexual autonomy, and decisional freedom as integral to fundamental rights, have substantially weakened the moral and legal foundation of the marital rape exception. Comparative legal practices across jurisdictions such as the United Kingdom, United States, South Africa, and Australia further demonstrate that criminalizing marital rape strengthens rather than destabilizes the institution of marriage by reinforcing consent and mutual respect. India’s continued retention of the exception places it at odds with international human rights standards and evolving global jurisprudence.
Criminalizing marital rape is therefore not merely a matter of legal reform but a constitutional necessity rooted in gender justice and constitutional morality. While concerns regarding misuse must be addressed through procedural safeguards, they cannot justify the denial of criminal remedies to victims of serious sexual violence. Recognizing marital rape as an offence would affirm that marriage does not override consent and that fundamental rights do not cease at the threshold of the marital home.
FAQS
1. What is marital rape under Indian law?
Marital rape refers to non-consensual sexual intercourse by a husband with his wife. Under Indian law, Exception 2 to Section 375 IPC excludes marital rape from the definition of rape if the wife is above 18 years of age.
2. Is marital rape a criminal offence in India?
At present, marital rape is not criminalized in India for wives above 18 years. However, sexual intercourse with a minor wife is considered rape as per the Supreme Court’s decision in Independent Thought v. Union of India (2017).
3. Does marriage imply permanent consent to sexual relations?
No. Modern constitutional jurisprudence recognizes consent as continuous and revocable. Judicial reasoning in cases related to privacy and bodily autonomy rejects the notion of irrevocable marital consent.
4. What legal remedies are available to a victim of marital rape?
Although criminal prosecution for rape is unavailable, victims can seek civil remedies under the Protection of Women from Domestic Violence Act, 2005, including protection orders, residence rights, and compensation.
5. Why is the criminalization of marital rape controversial?
The issue is controversial due to concerns regarding misuse of law, impact on marital relationships, and evidentiary challenges. However, critics argue that these concerns cannot override fundamental rights to dignity, equality, and bodily autonomy.
