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Marital Rape in India: The Battle Between Law and Social Morality

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

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

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

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

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

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

Bodily Autonomy, Constitutional Morality and the Role of the State

Comparative Frameworks, Challenges, and the Path Forward

Comparative International Frameworks and Lessons for India

Challenges and Miconceptions

Reform Recommendations

Conclusion

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).

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