Author: Maansi Gupta, St Joseph’s College of Law
To the Point
Connubial rape remains one of the most severe yet fairly ignored forms of sexual violence in India. Under Exception 2 to Section 375 of the Indian Penal Code, forced sexual intercourse by a hubby with his woman is n’t considered rape, handed the woman is above 18 times of age. This legal exception creates a dangerous zone of immunity within marriage, where a woman’s concurrence is fairly inapplicable. The Indian Constitution guarantees the right to equivalency( Composition 14),non-discrimination( Composition 15), and particular liberty( Composition 21). Yet, the connubial rape exception directly contradicts these abecedarian rights. It treats a woman’s body as the legal property of her hubby and denies her the introductory right to fleshly autonomy. This contradiction between indigenous guarantees and felonious law reflects the deep- confirmed patriarchal values that continue to impact India’s legal system. Several Law Commission reports and judgments have stressed the need to criminalise connubial rape.
The Justice Verma Committee( 2013) explosively recommended its junking, emphasising that marriage can not be a license for sexual violence. still, the council has defied these calls, citing enterprises over abuse, breakdown of connubial harmony, and evidentiary issues — arguments that prioritise social smirch over women’s rights. Internationally, numerous countries have criminalised connubial rape, recognising it as a mortal rights violation. India’s continued inactivity undermines its global mortal rights commitments and weakens its stage on gender justice. This paper argues that concurrence must be central to all sexual connections, anyhow of connubial status. The felonious law must be amended to remove Exception 2 to Section 375 and insure equal protection for all women. Criminalising connubial rape is n’t an attack on marriage it is a step toward recognising women’s right to quality, autonomy, and justice within it. Abstract Marital rape remains one of the most queried and ignored issues in India’s felonious justice system.
While the Indian Penal Code criminalises rape under Section 375, Exception 2 carves out a disturbing impunity — stating that forced sexual intercourse by a man with his woman is n’t rape, handed she is n’t under 18 times of age. This legal fabrication denies the veritably conception of concurrence within marriage and reinforces the outdated notion that marriage provides unconditional sexual access to a woman’s body. This paper undertakes a doctrinal and logical study of the Indian legal frame girding rape laws, with specific focus on the indigenous inconsistencies that arise from the connubial rape exception.
It explores how this impunity violates abecedarian rights under Articles 14, 15, and 21, by creating an arbitrary distinction between wedded and unattached women with respect to protection from sexual violence. The paper also engages with relative legal developments in authorities that have criminalised connubial rape, offering perceptivity into how Indian law can evolve in line with global mortal rights norms. In addition, this exploration examines the socio-legal apologies generally offered against criminalising connubial rape, similar as the fear of abuse, breakdown of family structures, and challenges in proving non-consent. It argues that these enterprises, though not inapplicable, can not stamp a woman’s right to fleshly autonomy, quality, and equal protection under the law. Eventually, the paper asserts that the uninterrupted legal impunity granted to connubial rape undermines gender justice and sustains patriarchal power structures within families. It concludes by calling for immediate legislative reform to remove the connubial rape exception and for a broader societal shift toward recognising concurrence as a abecedarian,non-negotiable right — indeed within marriage. Use of Legal Jargon Legal slang plays a significant part in shaping how the issue of connubial rape is bandied, interpreted, and eventually addressed within the Indian legal frame. In the environment of connubial rape, legal language has frequently obscured rather than clarified the core issue — concurrence.
Use of Legal Jargon
The use of rigid legal language, specialized expressions, and outdated doctrines not only influences the content of the law but also reflects the underpinning social and institutional stations toward gender, autonomy, and marriage. A high illustration of legal slang impacting the connubial rape converse is the Exception 2 to Section 375 of the Indian Penal Code( IPC), which reads “ Sexual intercourse by a man with his own woman , the woman not being under eighteen times of age, is n’t rape. ” The expression may feel neutral at first regard, but it embeds a deeply problematic supposition — that marriage implies irrevocable concurrence. The language then’s further than bare words; it reflects a social- period belief that a woman’s autonomy is contained under the institution of marriage. This archaic conception stems from the doctrine of blanket, a principle in British common law where a woman’s legal rights were intermingled with her hubby’s upon marriage.
Terms similar as “ irrevocable concurrence, ” “ marital rights, ” and “ legal impunity ” are frequently used in judicial and legislative conversations girding connubial rape. These expressions, while sounding fairly licit, effectively function to deny a wedded woman her fleshly autonomy. The use of terms like reparation of marital rights, for case, implies a legal anticipation of sexual access, cloaked in civil procedure, that contradicts the ultramodern understanding of concurrence. Another crucial term central to this debate is “ concurrence. ” In rape law, concurrence is a decisive factor, yet it is n’t easily defined in the environment of marriage. The legal system’s silence or vague use of the term within connubial settings has allowed courts and lawgivers to overlook the nuanced and situational nature of concurrence.
A prime example of legal jargon impacting the marital rape discourse is the Exception 2 to Section 375 of the Indian Penal Code (IPC), which reads: “Sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape.” The phrase may seem neutral at first glance, but it embeds a deeply problematic assumption—that marriage implies irrevocable consent. The language here is more than mere words; it reflects a colonial-era belief that a wife’s autonomy is subsumed under the institution of marriage. This archaic concept stems from the doctrine of coverture, a principle in British common law where a wife’s legal rights were merged with her husband’s upon marriage.
Terms such as “irrevocable consent,” “conjugal rights,” and “legal immunity” are often used in judicial and legislative discussions surrounding marital rape. These phrases, while sounding legally legitimate, effectively function to deny a married woman her bodily autonomy. The use of terms like restitution of conjugal rights, for instance, implies a legal expectation of sexual access, cloaked in civil procedure, that contradicts the modern understanding of consent.
Another key term central to this debate is “consent.” In rape law, consent is a decisive factor, yet it is not clearly defined in the context of marriage. The legal system’s silence or vague use of the term within marital settings has allowed courts and lawmakers to overlook the nuanced and situational nature of consent. While Section 375 elaborates on what does not amount to consent—such as coercion, fraud, or incapacity—it does not address the complex dynamics of coercion that may exist within intimate relationships. This legal gap is compounded by the absence of any explicit recognition of marital rape in Indian statutes.
The use of legal jargon also influences public perception. When terms like mens rea, onus of proof, or presumption of innocence are used in legal debates around marital rape, they tend to shift focus from the survivor’s experience to procedural technicalities. While such principles are fundamental to criminal law, their application within a context as personal and private as marriage requires sensitive adaptation, not mechanical use.
The proof
The legal status of connubial rape in India remains one of the most striking contradictions in its felonious justice system. Despite indigenous guarantees of equivalency, quality, and particular liberty, Indian law continues to deny the recognition ofnon-consensual coitus within marriage as rape. The strongest evidence of this lies in the textbook of the Indian Penal Code, the judicial response to connubial rape, and India’s failure to align with transnational mortal rights norms. The clearest legal substantiation is Exception 2 to Section 375 of the IPC, which explicitly states that sexual intercourse by a man with his own woman, the woman not being under eighteen times of age, is n’t rape. This single exception legalises an act that would else be a serious felonious offence if committed by anyone differently. It creates a legal presumption of inferred and nonstop concurrence within marriage. This contradicts the veritably conception of concurrence as voluntary, informed, and able of being withdrawn at any time. The indigenous conflict is also apparent. Composition 21 of the Constitution guarantees the right to life and particular liberty, which includes the right to fleshly autonomy and protection from sexual violence. also, Composition 14 ensures equivalency before the law, and Composition 15 prohibits demarcation on the grounds of coitus. Yet, wedded women are barred from full protection under the rape law solely on the base of their connubial status, violating these indigenous guarantees. The Justice Verma Committee( 2013), constituted after the Nirbhaya case, recognised this contradiction and explosively recommended that the connubial rape exception be removed. still, the recommendation was noway enforced. Judicial responses further demonstrate the state’s disinclination to criminalise connubial rape. In Independent study v. Union of India( 2017), the Supreme Court struck down part of Exception 2 to Section 375, raising the age of concurrence within marriage to 18, thereby incompletely guarding minor women . still, the Court stopped suddenly of addressing connubial rape more astronomically, stating that the matter needed legislative action. also, colorful High Courts have delivered clashing opinions some admitting the violation of concurrence in marriage, while others have upheld the being exception citing legislative intent. Internationally, India’s position is out of step with global mortal rights morals. The Convention on the Elimination of All Forms of Demarcation Against Women( CEDAW), which India has ratified, obliges countries to exclude gender- grounded violence in all forms, including within marriage. further than 100 countries, including Nepal, Bhutan, and South Africa, have criminalised connubial rape. India’s continued impunity reveals its failure to fulfill its transnational commitments. Social and cerebral studies also offer evidence that connubial rape has ruinous consequences. Victims frequently suffer from long- term trauma, depression, and physical abuse, yet are denied legal expedient. National Family Health checks have shown that numerous women witness sexual violence from their misters but do n’t report it, largely due to social smirch and the absence of legal protection. In sum, the presence of an unequivocal legal exception, the casualness for indigenous equivalency and autonomy, judicial vacillation, transnational review, and proved survivor gests all serve as inarguable evidence that connubial rape in India is an uncriminalised violation of concurrence.
Abstract
This research paper explores the contentious issue of marital rape in India, highlighting its absence from the Indian Penal Code as a punishable offence. While sexual violence is criminalized under Section 375 of the IPC, Exception 2 creates a legal immunity for husbands, thereby institutionalizing forced sex within marriage. This paper examines the historical, socio-legal, and constitutional underpinnings of this exception, and how it contradicts fundamental rights guaranteed under Articles 14, 19, and 21 of the Constitution. It further analyzes the international human rights obligations India has signed, including CEDAW, and how continued inaction undermines its global commitments. The paper adopts a doctrinal methodology, relying on statutes, judicial precedents, reports of the Law Commission and other governmental bodies, and comparative jurisprudence from countries like the UK and South Africa, where marital rape has been criminalized. Through this analysis, the paper argues for a gender-just interpretation of the law that recognizes the agency, autonomy, and bodily integrity of married women. The aim is to trigger legal reform, strengthen victim protection, and promote marital equality. The study underscores the urgency of removing Exception 2 to Section 375 to ensure that marriage is not a license for sexual violence, and that all women receive equal protection under the law.
Case Laws
1. Independent study v. Union of India( 2017) –( 2017) 10 SCC 800 This corner judgment challenged the constitutionality of Exception 2 to Section 375 IPC, which barred connubial rape from the description of rape if the womanwas over 15 times of age. The Supreme Court held that sexual intercourse with a minor woman( under 18) constitutes rape, indeed if the marriage is valid. Although the judgment did n’t extend to adult women, it was the first judicial step in questioning the connubial rape exception and recognising the supremacy of concurrence, indeed within marriage.
2. State of Maharashtra v. Madhukar Narayan Mardikar( 1991) – AIR 1991 SC 207 In this case, the Supreme Court upheld the right of every woman, anyhow of her social standing or once conduct, to refuse sexual advances and maintain her fleshly autonomy. The Court clarified that no bone, including a hubby, can assume a right over a woman’s body. This ruling corroborated the conception that concurrence must be admired in all circumstances and laid a indigenous foundation for opposing connubial rape.
3. Suchita Srivastava v. Chandigarh Administration( 2009) –( 2009) 9 SCC 1 Then, the Court held that reproductive choices are a part of a woman’s particular liberty under Composition 21. The case involved a mentally challenged woman who wished to carry her gestation to term, and the Court ruled in her favour, emphasising fleshly autonomy and decisional sequestration. These principles are directly applicable to the debate on connubial rape, as they affirm that concurrence and control over one’s body remain complete irrespective of connubial status.
Conclusion
The exclusion of marital rape from the ambit of criminal law in India perpetuates a dangerous legal fiction that marriage nullifies a woman’s right to bodily autonomy. This legal gap reflects deeply embedded patriarchal notions that prioritize the institution of marriage over the individual dignity and freedom of women. The analysis undertaken in this research demonstrates that Exception 2 to Section 375 of the Indian Penal Code is not only outdated but also unconstitutional. It violates the rights to equality, life, and dignity enshrined in the Constitution and fails to align with India’s obligations under international human rights law. Several judicial pronouncements have hinted at the regressive nature of this exception, but a decisive ruling or legislative intervention is still awaited. The experiences of other jurisdictions show that criminalizing marital rape is both possible and necessary without destabilizing the family structure. As Indian society progresses, so too must its legal framework — one that must recognize that consent remains essential, even within marriage. Until such reforms are enacted, countless women will remain trapped in abusive relationships without legal recourse. The conclusion is unambiguous: the law must evolve to criminalize marital rape and uphold the fundamental rights and dignity of all women, regardless of marital status.
FAQ’S
Is marital rape a crime in India?
No, marital rape is not criminalised under Indian law due to Exception 2 of Section 375 IPC.
What does Exception 2 to Section 375 IPC state?
It exempts sexual intercourse by a husband with his wife (above 18 years) from being considered rape.
Why is marital rape not criminalised in India?
Due to outdated legal and social norms that view marriage as giving unconditional sexual consent.
Has the Supreme Court addressed marital rape?
Yes, but only partially, like in Independent Thought v. Union of India which protects minor wives; adult wives remain unprotected.
Are there calls for criminalising marital rape in India?
Yes, many activists, Law Commission reports, and international treaties urge criminalisation to protect women’s rights.
