Author: Vanshika Singh, Vivekananda Global University, Jaipur
To the Point
India is one of the few democratic nations where marital rape has yet to be criminalised. This huge gap in the legal system permits sexual abuse within marriage to continue unabated, while also reinforcing patriarchal notions that consider women as objects without agency. It perpetuates the patriarchal view that a woman is essentially an object, forced to please a man’s sexual cravings without her permission. This worldview not only dehumanizes women, but it also dangerously legitimizes sexual assault inside the confines of marriage. The lack of criminal responsibility for such crimes has resulted in increased psychological suffering, more incidents of domestic violence, and a blatant violation of constitutionally protected rights and safeguards.
Abstract
The exception for marital rape under Indian law—specifically, under Exception 2 to Section 375 of the Indian Penal Code—is strongly founded in colonial and patriarchal notions that saw women as inferior to their husbands, with no power over their own bodies. This legal clause, rather than safeguarding marital harmony, helps to legally insulate violent sexual behavior merely because it occurs inside the context of marriage. By doing so, it undermines the concept of consent in married relationships and encourages the regressive belief that marriage grants an irrevocable license to sex.
This outmoded rule leaves a substantial legal gap in India’s criminal justice system. It effectively permits sexual abuse to continue unabated within a marriage, fostering a culture in which male control is normalised and women are denied physical autonomy. The lack of legal consequences emboldens criminals, develops an environment of impunity, and fails to provide justice to numerous women who have suffered sexual assault at the hands of their spouses.
The implications of this legislative vacuum are far-reaching. Women who are subjected to forced sexual actions in marriage frequently develop serious psychological trauma, including but not limited to depression, anxiety disorders, Post-Traumatic Stress Disorder (PTSD), and suicidal thoughts. The trauma is exacerbated by the fact that these women lack an adequate legal recourse under criminal law, resulting in a cycle of violence and silence.
In contrast, the majority of progressive legal systems across the world acknowledge that consent does not become immaterial after two people marry. Countries such as the United Kingdom, Canada, South Africa, and the United States have altered or interpreted their laws to recognize that non-consensual sex within marriage is just as harmful to human liberty and dignity as it is outside of marriage. These legal systems recognize that human autonomy, dignity, and physical integrity are essential rights that must be safeguarded regardless of marital status.
The difference between Indian law and international legal norms emphasizes the critical need for significant legal reforms. The continuous validity of the marital rape exemption in India violates the Constitution’s values, notably Articles 14, 15, and 21, which provide equality before the law, ban discrimination, and protect the right to life and personal liberty. Legislative change must be guided by comparative legal analysis, constitutional requirements, judicial precedents, and scientific facts on the social and psychological consequences of marital rape.
The purpose of this paper is to investigate the crucial importance of criminalizing marital rape in India using a multifaceted approach that combines legal interpretation, constitutional analysis, case law debate, and sociological insight. Only by correcting this deeply ingrained legal oddity will India progress to a more equitable and gender-sensitive legal system.
Use of Legal Jargon
Under the present Indian legal system, Exception 2 to Section 375 of the Indian Penal Code (IPC), 1860, states that sexual intercourse between a man and his wife, provided she is not under the age of fifteen, does not constitute rape. This anachronistic provision continues to protect perpetrators of marital rape from criminal prosecution simply on the basis of a married relationship.
This clause is more than just a legal mistake; it is a flagrant violation of the basic rights guaranteed by the Indian Constitution. It establishes a discriminatory environment in which married women are denied the same legal protection against sexual assault as unmarried women. In essence, it undermines the idea of consent in marriage, arguing that a woman immediately loses her sexual autonomy when she enters into nuptials.
This legal attitude is fundamentally irreconcilable with the Constitution’s essential ideals, particularly:
Article 14 – Right to Equality, the marital rape exception discriminates against women based on their marital status, preventing them from receiving equal legal protection. It establishes an unfair categorization, resulting in married women being handled differently from their unmarried counterparts in situations of sexual assault, with no rational basis.
Article 15 – Prohibition of Discrimination promotes discrimination based on gender and marital status, promoting patriarchal norms that prioritize men’s rights above women’s. This violates the constitutional requirement to eliminate discrimination against women.
Article 19 – Freedom of Expression: Even in marital rape cases, the right to voice opposition or withdraw consent is crucial for personal liberty. Denying women the ability to decline sex in marriage substantially limits their independence.
Article 21: Right to Life and Personal Liberty. The most flagrant breach is the deprivation of bodily integrity, mental well-being, and the right to live with dignity, all of which are elements of Article 21 as read by the Supreme Court in key decisions. The marital rape exemption deprives women of their privileges, exposing them to pressure, trauma, and abuse in the name of marital rights.
Furthermore, the exemption clearly contradicts the current idea of consent, which is central to criminal law in situations involving sexual offenses. The Supreme Court has often stated that the absence of consent is the defining feature of rape. By omitting marital relationships from this concept, the law conveys a hazardous message: marriage invalidates a woman’s right to refuse permission.
Given these inconsistencies, Exception 2 to Section 375 not only breaches India’s constitutional protections, but it also strengthens patriarchal systems that consider women as passive subjects in marriage. It inhibits progress toward gender equality and reflects negatively on the Indian judicial system’s commitment to justice and human rights.
The Proof
The occurrence of marital rape in India remains a major problem, yet it is frequently underreported due to cultural standards and a lack of explicit legal safeguards. Data from the National Family Health Survey-5 (NFHS-5), performed between 2019 and 2021, gives insight into the extent of marital abuse: Gokhale Institute
Forms of Violence: Among these, 28.3% reported physical violence, 14.1% emotional violence, and 6.1% sexual violence. PubMed
Help-Seeking Behaviour: Despite these figures, only about 14.9% of women who experienced any form of violence sought help, with a mere 1 in 10 approaching formal sources like the police or healthcare providers. SpringerLink
These findings highlight a considerable gap in legal protection and public recognition of marital rape. The lack of particular legislative measures criminalizing marital rape not only maintains a culture of silence, but it also denies victims the justice and assistance they require.
Despite these extensive suggestions, the Indian legislature has yet to carry out these critical reforms. The continuous lack of legal recognition for marital rape not only violates constitutional values of equality and personal liberty, but it also fails to protect countless victims from further assault.
Case Laws
Independent Thought v. Union of India (2017) 10 SCC 800
In this important decision, the Supreme Court reduced the age of consent in marriage from 15 to 18 years, ruling that intercourse with a teenage wife constitutes rape. While the Court did not totally invalidate the marital rape exemption, it did call into question the legality of Section 375 IPC exception 2.
Joseph Shine v. Union of India (2019) 3 SCC 39
Although this case was largely about adultery, the Supreme Court declared Section 497 IPC unlawful and recognized that marriage does not imply a loss of autonomy or identity for women. The decision can be used as supporting evidence to invalidate the marital rape exemption.
State of Karnataka v. Krishnappa (2000) 4 SCC 75
The Court noted that sexual assault is a type of physical and mental torment that violates a woman’s dignity. It emphasized that any conduct that violates physical integrity, even within a partnership, is an infringement on core human rights.
Conclusion
The ongoing unwillingness to criminalize marital rape in India is a serious constitutional failing, not just a legislative deficit. In a society that purports to respect the ideals of liberty, equality, and dignity in its Constitution, the judicial system’s silence on sexual abuse in marriage undermines these fundamental principles. By denying victims of marital rape legal recourse, the state implicitly condones a kind of abuse that is not only extremely traumatic but also structurally repressive.
Consent must be universal and indivisible. The dictum “no means no” retains its relevance at the altar of marriage. To argue differently is to return to antiquated views that view marriage as a contract of ownership rather than a union of equals. Marital status should never be used to trump a woman’s physical autonomy. The idea that consent is implicit in marriage is not only antiquated, but it also contradicts current understandings of human rights and gender equality.
Across the globe, several progressive nations have accepted the fundamental reality that marriage cannot serve as a shelter against sexual abuse. Legal systems in nations such as the United Kingdom, in the landmark decision R v. R (1991), have explicitly removed the marital rape exemption, affirming that non-consensual sex within marriage is rape. Countries such as Australia, New Zealand, and South Africa have also passed legislation to guarantee that consent is important to all sexual relationships, regardless of marital status. Notably, even South Asian neighbours like Nepal, Bhutan, and the Maldives have criminalized marital rape, demonstrating that such legislative progression is culturally and politically viable within the area.
In sharp contrast, India maintains an ancient provision under Section 375 of the Indian Penal Code, which exempts forced sexual intercourse by a spouse from the concept of rape. This legal attitude placed India in violation of its international human rights responsibilities, particularly the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which it has ratified. The country’s refusal to reform reflects a larger social failure to respect women’s autonomy inside marriage, which perpetuates a system in which marital rape goes unnoticed, unpunished, and tragically normalised.
Given this context, it is critical for India to reconsider its criminal law in light of constitutional morality and worldwide human rights norms. Amending Section 375 of the Indian Penal Code to eliminate the marital rape exception is a social, ethical, and democratic responsibility. Consent must be considered inviolable in all sexual encounters, regardless of marital status. The protection of each individual’s dignity, autonomy, and bodily integrity must become the foundation of criminal law.
Furthermore, beyond legislative change, there is a need for widespread cultural awareness. Education, media, and institutional training must all promote awareness of consent, women’s rights in intimate relationships, and the illegitimacy of compulsion. Legislators, judges, law enforcement, and civil society must work together to remove patriarchal beliefs that conceal sexual assault as marital entitlement.
The refusal to criminalise marital rape continues to harm the emotional and physical health of many women. It legitimises power over women’s bodies, exacerbates inequality, and contradicts the constitutional guarantee of justice. India must no longer ignore this systemic cruelty. The time has come to ensure that all women, married or unmarried, are equally protected by the law. Marital rape must be recognized for what it is: a serious breach of human rights and a crime that requires quick reparation.
FAQS
1.What constitutes marital rape?
Marital rape is defined as nonconsensual sexual intercourse or sexual actions perpetrated by a husband against his wife without her permission. It constitutes a breach of physical autonomy and sexual rights inside marriage.
2. Is marital rape a criminal violation in India?
No, marital rape is now excepted from the definition of rape under Exception 2 to Section 375 of the Indian Penal Code, which means it is not considered a crime in India.
3. Why is it necessary to make marital rape illegal?
Criminalizing marital rape safeguards essential human rights such as bodily autonomy, dignity, and equality. It promotes the prevention of sexual abuse in marriages and offers victims with legal remedies.
4.Which nations have criminalized marital rape?
Countries such as the United Kingdom, the United States, Canada, Australia, New Zealand, South Africa, and certain South Asian neighbors such as Nepal and Bhutan have legislation making marital rape a criminal offense.
5. What legislative reforms are required in India to address marital rape?
India must revise Section 375 of the IPC to eliminate the marital rape exception and unambiguously criminalize nonconsensual sexual conduct within marriage, in accordance with constitutional safeguards and international human rights norms.
