Author: Aman Bhargava, a student of University of lucknow
Abstract
The issue of marital rape – when a husband forces sexual intercourse upon his wife without consent – 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. This legal loophole, found in Exception 2 of Section 375 in the Indian Penal Code from 1860, stems from outdated colonial-era thinking and doesn’t align with modern democratic principles. This protection for marital rape creates an environment where such crimes go unpunished; denying women their basic right to control their own bodies and seeks justice, even within marriage.
This piece examines where this marital rape exception came from historically, shows how it conflicts with our constitutional principles, reviews court decisions that have set the stage for potential reform, and looks at how other countries handle this issue. It builds a strong argument for removing this marital rape exception and creating laws that treat a wife’s consent the same as any other woman’s consent. The article contends that failing to criminalize marital rape isn’t just a legal oversight but a serious violation of constitutional rights, calling for immediate action from both lawmakers and courts to address this form of violence against women.
To the Point
In India, marital rape isn’t treated as a crime because of legal protection given through Exception 2 of Section 375 in the Indian Penal Code. This rule states that when a man has sexual intercourse with his wife, it cannot be considered rape as long as she’s eighteen or older. This essentially means that once a woman gets married, her right to say no becomes legally meaningless. The belief that marriage equals permanent agreement to sexual relations comes from old-fashioned patriarchal thinking and has no business existing in today’s legal system that should protect individual 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 Jargons
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 was based on the belief that wives owed conjugal duties to their husbands, including permanent consent to sexual relations. While coverture has been eliminated in most democratic countries, its traces still exist in India’s legal system through the marital rape exception.
Another key idea is the assumption of consent, which wrongly presumes that marriage represents ongoing and unlimited agreement to sexual intercourse. This assumption undermines bodily autonomy, which forms the foundation of the right to life and personal liberty found in Article 21 of the Constitution. The concept of legal immunity for husbands in rape cases effectively cancels out gender justice and enables intimate partner violence by protecting perpetrators from consequences.
Constitutional morality, a principle that Indian courts have recently used in several important cases, requires that laws reflect the progressive values written into the Constitution rather than backward social customs. When we examine the marital rape exception through constitutional morality, it clearly violates the values of equality, autonomy, and dignity. Using doctrines like the right to privacy, as established in Justice K.S. Puttaswamy v. Union of India, further supports the argument that women’s rights to sexual autonomy must be respected within marriage too. These legal terms aren’t just academic concepts but tools that can be used to critically examine and eliminate marital rape immunity.
The Proof
The reasoning behind the marital rape exception goes back to an 18th-century statement by Sir Matthew Hale, who declared that husbands cannot be guilty of raping their wives because marriage means the wife has given herself to her husband in this way and cannot take it back. This outdated idea entered Indian law through colonial legal codes, particularly the Indian Penal Code of 1860. As time passed and social values changed, legal systems worldwide began recognizing women’s rights and autonomy, leading most democracies to change their laws to criminalize marital rape. However, India has not made this change, continuing to rely on a legal fiction that doesn’t match women’s actual experiences.
Information from the National Family Health Survey-5 (2019-2021) shows that a substantial percentage of women report experiencing sexual violence from their husbands. However, because of the legal exemption, these acts aren’t recognized as crimes, and women often must suffer quietly. The National Crime Records Bureau doesn’t even gather data on marital rape, which further contributes to making this type of violence invisible in public discussions. The lack of legal recognition doesn’t mean harm doesn’t occur – it shows the systematic invisibility that the law creates.
India has also signed several international agreements and conventions, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which requires member countries to eliminate all forms of gender-based violence, including domestic violence. The UN Committee on the Elimination of Discrimination against Women has repeatedly urged India to criminalize marital rape. However, lawmakers have largely ignored these recommendations, showing a lack of political willingness to face uncomfortable truths about violence within marriages.
Case Laws
While there’s no direct Supreme Court ruling that eliminates the marital rape exception, several important judgments have established the constitutional basis for recognizing marital rape as a criminal offense. In Independent Thought v. Union of India, the Supreme Court limited the marital rape exception to exclude sexual intercourse with minor wives between fifteen and eighteen years old. The Court determined that the exception violated the rights of girl children under Article 21 and the Protection of Children from Sexual Offences (POCSO) Act. This judgment matters because it questioned the idea that marriage automatically makes sexual intercourse acceptable, especially when it violates a minor’s dignity and bodily autonomy.
In Joseph Shine v. Union of India, the Supreme Court eliminated Section 497 of the IPC, which criminalized adultery, ruling that it was based on patriarchal ideas and treated women as their husbands’ property. The Court stressed the principles of equality, autonomy, and dignity, stating that laws must evolve with changing social conditions and constitutional values. While this case didn’t directly address marital rape, its reasoning provides strong support for challenging the marital rape exemption.
The Suchita Srivastava v. Chandigarh Administration case confirmed that women’s right to make reproductive choices is an essential part of their personal liberty under Article 21. The Court recognized that rights to privacy, dignity, and bodily integrity must be respected in all situations, including within marriage.
In State of Karnataka v. Krishnappa, the Supreme Court acknowledged that sexual violence violates women’s rights to live with dignity and bodily integrity. The Court recognized that rape isn’t merely a physical act but an attack on women’s autonomy and humanity. These judgments, considered together, create a constitutional framework that completely conflicts with the continued existence of marital rape immunity in Indian law.
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. This marital rape exemption found in Section 375 of the Indian Penal Code mirrors centuries-old patriarchal thinking that positions women as subordinate to their spouses and strips away their right to make decisions about their own bodies within matrimony.
Legal transformation has moved beyond being a matter of discussion – it has become a constitutional necessity. 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 immunity essentially protects husbands from facing charges for forcing sexual contact upon their wives, viewing matrimony as irrevocable and continuous agreement. Although certain civil options are available through the Protection of Women from Domestic Violence Act of 2005, these measures fail to treat the behavior as criminal or impose the harsh penalties that rape legislation typically provides.
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.
