This article is written by Harsh Deep Mishra of Shambhunath Institute of Law.
ABSTRACT:
The paper discusses the need to recognize marital rape as a specific and punishable offense in India and presents the numerous legal, social, and ethical reasons for doing so. It gives a historical account of marital rape in Indian law and discusses the existing laws that do not recognize consent as a violation in marriage. The paper then focuses on the changing social and cultural norms that allow for the normalization of marital rape and presents multiple case studies and statistics to highlight the consequences of this type of violence against women. By adopting a comparative approach with international legal standards and practices, this research proposes necessary reforms in Indian law to be in line with global norms of human rights, recognizing that consent is necessary in all kind of sexual activities. In the end, this study makes an urgent plea for the enactment of laws that promote rights for women, gender equality, and a social evolution that acknowledges the autonomy and dignity of married women in India.
KEY- WORDS:
Marital rape, consent, Section 375 IPC, fundamental rights, gender equality, Justice Verma Committee, CEDAW, bodily autonomy, constitutional morality, RIT Foundation case.
INTRODUCTION:
In Indian culture marriage is holy and pious in nature and is strong and unbreakable. However, this same sanctity has been historically used to legitimize certain forms of violence, notably marital rape. Even as individual rights and gender justice have gradually been brought to the fore by the legal system of India, the glaring contradiction remains that non-consensual sexual intercourse within marriage is not classified as rape if the wife’s age is 18 years or more. The exception, which is now included in Exception 2 to Section 375 of the Indian Penal Code, is essentially an outgrowth of a colonial mindset that portrays marriage as an arrangement whereby permanent and unqualified consent to sexual intercourse may be construed to have been given by a wife, regardless of her will or autonomy.
This legal fiction constitutes an affront to a woman’s fundamental rights to dignity, bodily integrity, and equality; hence it strengthens those very patriarchal ideologies that compel women to accept the status of second-class citizens in their own homes. In a situation where sexual violence is so real a problem, the legality of marital rape is an affront to all morals and a big liability on the Constitution.
This article searches through the history of the marital rape exception and the law, highlights judicial pronouncements and reform committee recommendations to change the state of marital rape into a crime, and urges the repeal of all legal exemptions for marital rape. It asserts that the recognition of marital rape as a crime ought not to be seen as targeting marriage but rather as an essential precursor to ensure marriage as a place for mutual respect, equality, and consent.
TO THE POINT :
Under the law in India, there is no penal provision against sexual intercourse without consent when committed by a person with his spouse. The Indian Penal Code (Section 375) which defines the crime of rape says that when the perpetrator is the husband, there is no offence given the condition that the wife is of the age of 18 or above. This legal absurdity comes from the age-old thinking that marriage gives an absolute and an eternal consent rendering a married woman completely destitute of agency over her body and making her the subject to the husband’s will.
Although the Justice Verma Committee in its 2013 report has urged that marital rape be criminalized, so far no response was given by the legislature against this urgent reform. The issue was brought again in RIT Foundation v. Union of India. Given the current developments in jurisprudence and India’s international human rights obligations, it is important that the country reform its criminal laws to reflect the constitutional ideals of equality, dignity, and bodily autonomy..
USE OF LEGAL JARGON:
- Consent: A clear, voluntary, and informed agreement.
- Marital Rape Exception: A statutory provision that exempts husbands from being prosecuted for raping their wives.
- Public Interest Litigation (PIL): A Legal action which is initiated to protect the public rights or interests at large.
- Fundamental Rights: Constitutionally guaranteed rights such as the right to equality (Article 14), protection from discrimination (Article 15), and the right to life and dignity (Article 21).
- Doctrine of Severability: A legal principle which allows the courts to strike down unconstitutional parts of a statute while keeping the rest as it is.
THE PROOF
- Legal Landscape:
Section 375 IPC criminalizes rape but provides an exception when the act is committed by a husband upon his wife, provided she is over 18.
The Justice Verma Committee Report (2013) unequivocally recommended abolishing this exception, calling it discriminatory and unconstitutional.
India has ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), pledging to eliminate gender-based violence, including violence within the home.
The Supreme Court in Independent Thought v. Union of India (2017) read down the marital rape exception to criminalize sex with a minor wife (under 18), but the broader exemption remains.
In 2022, in the case of RIT Foundation Delhi High Court gave two decisions. Justice Rajiv Shakdher held the marital rape exception unconstitutional, while Justice C. Hari Shankar upheld its validity. Right now the matter is pending in the Supreme Court.
- International Context:
Over 100 countries across the globe, including developed democracies such as Great Britain, Australia, Canada, and South Africa, have recognized the criminalization of marital rape as one step towards gender equality and bodily autonomy of women in that marriage does not imply irrevocable consent, and sexual intercourse without consent within marriage is a very serious crime. However, India stands out as one of the few democracies where marital rape is not specifically punishable under penal law. The omission has been the subject of considerable criticism from international human rights organizations, treaty monitoring bodies, and legal experts, who are of the view that the current legal regime is deficient in complying with India’s obligations under several international conventions, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to which India is a party. Such agencies typically call upon the Indian government to amend its laws in line with developing global standards and provide equal security to all women, married or unmarried. Exemption of marital rape from Indian law undermines the dignity and autonomy of married women and reinforces patriarchal ideas which sanction sexual violence within the premises of marriage.
CASE LAWS
- Independent Thought v. Union of India
Citation: (2017) 10 SCC 800
Date: 11 October 2017
Bench: Justice Madan B. Lokur and Justice Deepak Gupta
Facts: The petitioner challenged the constitutionality of Exception 2 to Section 375 IPC, which allowed marital intercourse with a wife between 15 and 18 years of age without it being considered rape. The case focused on the conflict between this provision and child protection laws like the POCSO Act.
Held: The SC held that sexual intercourse with wife aged between 15 and 18 constitutes rape. The Court emphasized that the exception was arbitrary, discriminatory, and violative of Articles 14 (equality), 15 (non-discrimination), and 21 (right to life and personal liberty). It found the exception to be inconsistent with the Protection of Children from Sexual Offences (POCSO) Act, which sets the age of consent at 18. The Court recognized that child marriage, though not void under Indian law, cannot justify sexual exploitation. The judgment was a progressive interpretation that gave precedence to the child’s bodily integrity and dignity over patriarchal norms
- RIT Foundation v. Union of India
Citation: Delhi High Court, 2022 (Split Verdict)
Date: 11 May 2022
Bench: Justice Rajiv Shakdher and Justice C. Hari Shankar
Facts: Multiple petitions challenged the constitutional validity of the marital rape exception under Section 375 IPC (Exception 2), arguing that it violates Articles 14, 15, 19, and 21.
Held: This case resulted in a split verdict:
Justice Rajiv Shakdher:
Held that Exception 2 to Section 375 IPC, which exempts husbands from being prosecuted for rape committed against their wives, is unconstitutional. He reasoned that the exception violates Articles 14 (right to equality), 15 (prohibition of discrimination), and 21 (right to life and dignity). He emphasized that marriage does not imply irrevocable sexual consent and that every woman has autonomy over her body. The exception, he said, reinforces patriarchal stereotypes and treats women as subordinate to men within marriage.
Justice C. Hari Shankar:
Upheld the constitutionality of the exception, stating that it served a legitimate public interest by preserving the institution of marriage. He reasoned that marital rape cannot be equated with other forms of sexual violence due to the unique nature of marriage. He deferred to legislative wisdom, stating that policy decisions on such matters should be left to Parliament.
As a result of the split, the matter now awaits adjudication by the Supreme Court
- Suchita Srivastava v. Chandigarh Administration
Citation: (2009) 9 SCC 1
Date: 28 August 2009
Bench: Chief Justice K.G. Balakrishnan, Justice P. Sathasivam, Justice B.S. Chauhan
Facts: The case involved a mentally challenged woman who became pregnant due to rape.
Held: The Supreme Court upheld the reproductive autonomy of the woman, stating that her right to make decisions regarding pregnancy falls under Article 21 of the Constitution. The Court emphasized that reproductive choices are a dimension of “personal liberty” and include the right to carry or terminate a pregnancy. It ruled that consent is central to such decisions, and the State cannot force sterilization or abortion, especially when the woman is capable of making an informed choice. The judgment became a cornerstone in Indian jurisprudence on bodily autonomy and decisional privacy.
- Joseph Shine v. Union of India
Citation: (2019) 3 SCC 39
Date: 27 September 2018
Bench: Chief Justice Dipak Misra, Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra
Facts: The constitutional validity of Section 497 IPC (adultery law) was challenged as it treated women as property and lacked gender neutrality
Held: The Supreme Court declared the Section 497 of IPC as unconstitutional, by saying that it was violating the Articles 14, 15, and 21. The Court observed that the law treated women as the property. It decriminalized adultery, emphasizing that the State cannot police private consensual relationships. The Court highlighted that marriage does not extinguish individual identity and autonomy. Justice D.Y. Chandrachud, in his separate opinion, wrote that dignity and autonomy cannot be compromised by patriarchal laws. The ruling reaffirmed that individual agency survives within marital relationships
- State v. Ram Singh (Nirbhaya Case)
Citation: (2014) 6 SCC 384
Date: 1 13 March 2014 (Judgment by delhi High court), it was confirmed by SC in 2017
Bench (Delhi HC): Reva Khetrapal,J and Pratibha Rani,J.
Facts: The brutal gang rape and murder of a 23-year-old woman in Delhi in the year of 2012. The trial court had given the death penalty.
Held: The Delhi High Court, and subsequently the Supreme Court, upheld the conviction and death sentence of the accused in the brutal gang rape and murder of a 23-year-old woman. Rape is not just physical assault, but an affront to dignity and bodily integrity of a woman, the Court indicated. It has been termed as “rarest of rare,” thus making it deserving of capital punishment. The judgment further reiterated that consent is the bedrock of sexual relationships, and any sexual act under any circumstances without free and informed consent is a severe crime regardless of the relationship of the accused with the victim. The Court’s message was clear: all forms of sexual violence must be treated with equal seriousness and punished accordingly.
Conclusion
The marital rape exception entrenches patriarchal norms, legitimizes violence within marriage, and stands in violation of fundamental constitutional rights, including the rights to equality, dignity, and bodily autonomy. It directly conflicts with India’s obligations under international human rights law, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and with the progressive evolution of its own constitutional jurisprudence, which increasingly prioritizes individual consent and personal liberty, regardless of marital status.
Recognizing and criminalizing marital rape does not diminish the sanctity of marriage; rather, it upholds the true essence of a marital bond—one based on mutual respect, equality, and voluntary intimacy. Marriage cannot serve as a license for sexual coercion or violence. It is essential for the Indian Parliament to act without delay in repealing the exception of the marital rape under sections 375 of the Indian Penal Code. Such comprehensive change is imperative for developing a single and integrated legal definition of consent for all types of relationships and to provide procedural safeguards balancing rights of the accused with dignity and protection of the survivors. Finally, it would also develop awareness of these issues regarding consent bodily autonomy and gender equality in marriage.
Rape is rape, that is the most simple but the truest thing that India needs to say: whether it is done by a father or by a husband or by a friend or by someone else. Justice delayed is justice denied. Legal protection and human dignity are due to millions of Indian women, as well as the unambiguous right to say no.
FAQs
Q1: Is marital rape a punishable in India?
A1: No. Under current Indian law, Exception 2 to Section 375 of the Indian Penal Code exempts a husband from prosecution for rape committed against his wife, provided she is over the age of 18.
Q2: What did the Justice Verma Committee recommend regarding marital rape?
A2: The Justice Verma Committee, constituted in the aftermath of the 2012 Nirbhaya case, strongly recommended the removal of the marital rape exception. It stated that non-consensual sexual acts, irrespective of the relationship between the parties, should be recognized and punished as rape.
Q3: Why is criminalizing marital rape important for constitutional rights?
A3: The marital rape exception undermines the fundamental rights guaranteed under Articles 14 (equality before law), 15 (non-discrimination), and 21 (protection of life and personal liberty). It perpetuates patriarchal norms, denies women bodily autonomy, and creates a legal vacuum that enables impunity within marriage.
Q4: Can international law compel India to criminalize marital rape?
A4: While international law cannot directly compel India to amend its domestic legislation, India, as a signatory to treaties such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), is under a moral and legal obligation to align its laws with international human rights standards. Continued failure to do so invites international criticism and undermines India’s credibility in global human rights forums.
Q5: What does “consent” mean in legal terms?
A5: refers to a voluntary, informed agreement to engage in a specific sexual act. It must be given freely and can be changed at any time. Crucially, marriage does not imply perpetual or irrevocable consent, and the absence of consent within marriage should be legally recognized as rape.
