Author: Vansh Saraswat, Faculty of Law, University of Allahabad

Abstract

Marital rape remains a deeply contentious and neglected issue within India’s legal system. While over a hundred nations have recognized non-consensual intercourse within marriage as a crime, India continues to exclude it from the ambit of rape under its penal laws. This paper critically examines the marital rape exemption clause under Indian criminal law, explores its socio-legal implications, and analyzes the cultural and constitutional dilemmas that persist. It also compares international standards, judicial perspectives, and scholarly critiques while calling for urgent legislative reform.

To the Point

Despite progress in gender equality jurisprudence, the Indian Penal Code (IPC), through Exception 2 to Section 375, retains an archaic provision that effectively legalizes rape within marriage. This contradicts the spirit of constitutional guarantees under Articles 14, 19, and 21. Not only does it devalue a woman’s right to bodily autonomy, but it also fortifies patriarchal norms that view women as subservient within the institution of marriage. Even after the Bharatiya Nyaya Sanhita, 2023, was enacted, this exception remains, shielding perpetrators from legal accountability.

Use of Legal Jargon

The Indian legal landscape is fraught with terms such as ‘implied consent’, ‘coverture’, ‘intelligible differentia’, and ‘bodily integrity’. The doctrine of coverture, inherited from British common law, presumed a wife’s identity merged with her husband’s upon marriage. ‘Implied consent’ stems from this, falsely assuming perpetual sexual consent post-marriage. In modern jurisprudence, particularly post-Puttaswamy (privacy) and Joseph Shine (adultery), these concepts are challenged by ‘constitutional morality’ and evolving norms on autonomy and dignity.

The Proof

• Empirical data corroborates the existence of sexual violence within marriage. According to the National Family Health Survey (NFHS-5, 2019-21), nearly 30% of ever-married women in India have experienced spousal violence. Among them, a significant proportion reported being forced into non-consensual sex. Despite this, legal redress remains elusive. The Justice Verma Committee (2013), constituted in the aftermath of the Nirbhaya case, explicitly recommended the criminalization of marital rape. It noted that the exception to Section 375 is unconstitutional and violates the dignity of women. However, the then Government declined to implement this, citing potential misuse and impact on the sanctity of marriage.
  
• Internationally, over 100 countries including the UK, USA, Canada, and most of Europe criminalize marital rape. India’s non-compliance with international human rights obligations under CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) remains a significant blemish. As per a UN Women report (2011), India’s marital rape exception places it among a minority of states that legally sanction spousal sexual violence.

Case Laws

1. Independent Thought v. Union of India, (2017) 10 SCC 800:
  The Supreme Court read down the marital rape exception in the context of minor girls, holding that sex with a minor wife is rape, despite marital status. The court emphasized the primacy of bodily integrity and individual dignity.

2. Joseph Shine v. Union of India, (2018) 2 SCC 189:
  In striking down Section 497 IPC (Adultery), the court declared that marriage does not extinguish constitutional rights. This paves the way for arguing against the marital rape exception on similar constitutional grounds.

3. State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC 57:
  Recognized that every woman is entitled to privacy and bodily integrity, regardless of her marital status or social standing.

4. R. v. R. [1991] UKHL 12 (United Kingdom):
  The House of Lords declared that a man could be guilty of raping his wife, discarding the ancient doctrine of implied consent.

5. Shalu Nigam v. Regional Passport Officer (2021):
  The Delhi High Court upheld a woman’s autonomy by allowing her to exclude her husband’s name from her child’s passport, reflecting growing judicial recognition of women’s agency.

FAQs

• Q: What is marital rape?

A: Marital rape refers to non-consensual sexual intercourse by a husband with his wife.

• Q: Is marital rape recognized as a crime in India?

A: No. As of now, it is excluded under Exception 2 of Section 375 IPC.

• Q: What are the arguments for criminalizing marital rape?

A: It violates Articles 14, 19, and 21 of the Constitution and contradicts international human rights commitments.

• Q: What is the government’s position?

A: The government has expressed concern over potential misuse and disruption of marriage, hence reluctant to criminalize it.

• Q: Which countries have criminalized it?

A: The USA, UK, Nepal, Canada, and most of Europe recognize marital rape as a criminal offense.

Socio-Legal Critique and the Need for Reform

• The persistence of the marital rape exemption in Indian criminal law underscores a disturbing dissonance between law and lived reality. As argued by legal scholar Shalu Nigam, the normalization of sexual violence within marriage is deeply embedded in the cultural framework that prioritizes the sanctity of family over individual rights. This sanctification is used to silence dissent, invalidate survivors’ experiences, and reinforce the notion that a woman’s body is subject to her husband’s will by default.
  
• The Verma Committee’s findings were unequivocal in rejecting such patriarchal constructions. In its 2013 report, the Committee noted: “The fact that a woman is married does not give a husband the right to rape her.” It further argued that the immunity granted to husbands is discriminatory, unconstitutional, and perpetuates the impunity of domestic sexual violence. Yet, the government at the time chose not to enact this key recommendation.
  
• In 2022, a split verdict by the Delhi High Court in a batch of petitions challenging Exception 2 to Section 375 IPC highlighted the continuing judicial ambivalence. Justice Rajiv Shakdher held that the exception is unconstitutional and violates fundamental rights under Articles 14 and 21. Justice Hari Shankar dissented, citing possible misuse and societal repercussions. This split indicates the need for authoritative guidance from the Supreme Court, as well as parliamentary will to reform outdated legal standards.
  
• The Law Commission of India, in its 172nd and 243rd reports, has maintained conservative positions, often emphasizing the potential for misuse over the right to justice. However, this contrasts sharply with the Supreme Court’s emphasis on gender equality in decisions like Vishaka v. State of Rajasthan and NALSA v. Union of India, where it emphasized substantive equality and the importance of autonomy.
  
• Globally, India’s position appears increasingly untenable. In Nepal, for instance, marital rape was criminalized as early as 2002. In 2007, the European Court of Human Rights held in C.R. v. United Kingdom that any sexual act without consent, even within marriage, is a violation of fundamental rights. India, as a signatory to CEDAW, is obligated to eliminate all forms of discrimination against women—including in the private sphere of marriage.

Bodily Autonomy, Constitutional Morality and the Role of the State

• The Indian Constitution, through its transformative jurisprudence, envisions a society based on liberty, equality, and dignity. In Justice K.S. Puttaswamy v. Union of India, the Supreme Court recognized the right to privacy as intrinsic to Article 21. This includes decisional autonomy over intimate matters. In Navtej Singh Johar v. Union of India, the Court held that constitutional morality must prevail over social morality, reinforcing that traditions cannot override fundamental rights.

• Yet, the exemption of marital rape stands as a contradiction to this constitutional ethos. By presuming irrevocable consent to sexual activity post-marriage, the law denies a woman her bodily autonomy. This perpetuates the colonial doctrine that a woman ceases to have independent legal existence upon marriage—a view the judiciary has otherwise firmly rejected.

• The principle of constitutional morality requires the State to act as a guardian of rights even when such actions go against popular opinion. If the judiciary has shown the courage to strike down regressive provisions like the adultery law (Section 497 IPC) and Section 377 (criminalizing same-sex relations), there is no tenable justification for not repealing the marital rape exception.
  
• Furthermore, the principle of ‘intelligible differentia’ under Article 14 cannot justify the differential treatment of married and unmarried women who experience rape. The harm, trauma, and violation remain identical. Hence, the law’s exclusion of married women is arbitrary and violative of their equal protection rights.

Comparative Frameworks, Challenges, and the Path Forward

Comparative International Frameworks and Lessons for India

• Globally, many jurisdictions have reformed their legal frameworks to criminalize marital rape. The United Kingdom abolished the marital rape exception through judicial interpretation in the landmark case of R v. R [1991] UKHL 12. The House of Lords explicitly rejected the idea that a marriage contract includes irrevocable consent to sex. Similarly, in the United States, all fifty states have now criminalized marital rape, although the severity of punishment and prosecution mechanisms may vary. In Canada, marital rape has been treated as a crime since 1983 under a unified definition of sexual assault.

• The European Court of Human Rights has consistently maintained that sexual autonomy must be protected irrespective of marital status. In cases such as M.C. v. Bulgaria (2003), the court emphasized the need for effective laws that acknowledge that non-consensual sex within marriage is equally violative of personal liberty. These developments underscore a growing international consensus that non-consensual sexual activity within marriage is a gross violation of human rights.

• Despite being a signatory to international conventions such as CEDAW, India has failed to align its domestic laws with global human rights standards. General Recommendation No. 19 of the CEDAW Committee classifies gender-based violence, including marital rape, as a form of discrimination against women. It obligates states to enact laws protecting women from violence, including in private spaces such as the home.

Challenges and Miconceptions

• One of the primary arguments against the criminalization of marital rape in India is the fear of “misuse” of the law. Critics argue that disgruntled wives might file false cases to harass their husbands. However, this argument is not supported by empirical evidence. Data from countries that have criminalized marital rape show no unusual spike in false accusations. On the contrary, underreporting remains a much larger concern due to societal stigma and lack of legal awareness.

• Furthermore, the assumption that the institution of marriage will collapse if marital rape is criminalized is flawed. Laws exist to regulate behavior within all relationships, including marriage. Criminalizing dowry deaths, cruelty, and domestic violence has not led to the destruction of marriage as an institution. Rather, it has offered women a degree of legal recourse and security.
• It is also often claimed that there are sufficient civil remedies available under the Protection of Women from Domestic Violence Act, 2005 (PWDVA). While PWDVA provides for protection orders, residence orders, and monetary relief, it does not treat non-consensual sex as a crime. Thus, it falls short of delivering criminal justice to survivors of marital rape.

Reform Recommendations

• India needs a multi-pronged approach to address the lacuna in its criminal jurisprudence on marital rape. First and foremost, Exception 2 to Section 375 of the Indian Penal Code (and now Section 63 of the Bharatiya Nyaya Sanhita) must be repealed. A gender-neutral, consent-based definition of rape must be upheld, where the presence or absence of a marriage relationship is irrelevant.
  
• Second, the judiciary must continue to uphold and expand upon the principles of bodily integrity, decisional autonomy, and privacy established in landmark rulings like Justice K.S. Puttaswamy, Joseph Shine, and Navtej Singh Johar. These cases collectively create a constitutional framework that invalidates any law that forces sexual subjugation under the guise of marital duty.
  
• Third, public awareness and sensitization campaigns are essential. Education about sexual consent and gender equality must be integrated into school curricula. Law enforcement agencies and the judiciary must be trained to handle such cases with empathy and without prejudice.
  
• Lastly, the role of civil society organizations in offering counseling, legal aid, and rehabilitation services must be institutionalized and supported through government schemes. Survivors must have access to one-stop crisis centers and helplines that cater to cases of intimate partner violence.

Conclusion

• India’s continued reluctance to criminalize marital rape is not just a legislative omission; it is a violation of its constitutional mandate. Article 21 guarantees the right to life and personal liberty, which has been judicially interpreted to include the right to live with dignity, bodily integrity, and reproductive autonomy. Article 14 guarantees equality before law, and the marital rape exemption directly contradicts this by treating married and unmarried women differently in cases of rape.
• It is high time the Indian legal system acknowledges that marriage is not a license for sexual violence. The argument that criminalizing marital rape will destabilize marriages is rooted in patriarchal anxieties, not legal or empirical logic. Protecting the institution of marriage cannot come at the cost of compromising the bodily integrity and autonomy of half the population.

• Criminalizing marital rape is not merely a legal reform; it is a statement that the Indian Republic stands for justice, equality, and the dignity of all individuals. The Constitution demands it. Victims deserve it. And society must be prepared to embrace it.

• India stands at a crossroads between adhering to outdated patriarchal norms and embracing progressive constitutional values. The continued exemption of marital rape from the purview of criminal law is a violation of women’s rights to equality, dignity, and bodily autonomy. The argument that criminalizing marital rape would destabilize families is both empirically unsubstantiated and constitutionally indefensible. Legislative action must be taken to remove Exception 2 to Section 375 IPC (now Section 63 BNS), accompanied by gender sensitization among law enforcement and judicial officers.

• The Constitution does not envision marriage as a patriarchal contract but as a partnership of equals. Recognizing marital rape as a crime is not only a matter of legal reform but also of social justice and human dignity.
  

References

1. Independent Thought v. Union of India, (2017) 10 SCC 800.
2. Joseph Shine v. Union of India, (2018) 2 SCC 189.
3. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
4. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
5. Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
6. R v. R [1991] UKHL 12.
7. United Nations Population Fund, “State of World Population 2021.”
8. UN Women, Progress of the World’s Women Report (2011-2012).
9. Justice Verma Committee Report, Government of India (2013).
10. Convention on the Elimination of All Forms of Discrimination Against Women                         (CEDAW), General Recommendation No. 19.
11. The Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament,    2005 (India).
12. The Indian Penal Code, 1860 (Act 45 of 1860), § 375, Exception 2.
13. Bharatiya Nyaya Sanhita, 2023, § 63 Exception 2.
14. Shalu Nigam, “The Social And Legal Paradox Relating to Marital Rape in India: Addressing Structural Inequalities” (SSRN, 2015), available at https://ssrn.com/abstract=2613447.
15. Krina Patel, “The Gap in Marital Rape Law in India: Advocating for Criminalization and Social Change,” 42 Fordham Int’l L.J. 1519 (2019).
16. Apoorva Jaiswal, “Laws on Marital Rape in India – A Critical Analysis,” IJNRD Vol. 8 Issue 6 (2023).
17. Anuj Shukla, “The Legal Blind Spot: Analyzing the Implications of Marital Rape in India,” IJALR Vol. 5 Issue 3 (2025).
18. Sejal Chaturvedi, “Marital Rape: Ethical, Social and Legal Dilemma,” IJLSH Vol. 4 Issue 2 (2023).
19. Deepak Gautam & Gopal Singh, “A Study on Marital Rape: A Myth or Reality in Indian Context,” DNLU Law Review Vol. 1 Issue 1.
20. Raveena Rao Kallakuru & Pradyumna Soni, “Criminalisation of Marital Rape in India: Understanding Its Constitutional, Cultural and Legal Impact,” 11 NUJS L. Rev. 1 (2018).