Introduction
The concept of consent lies at the heart of modern jurisprudence on personal liberty, bodily autonomy, and sexual rights. However, when it comes to the institution of marriage, the legal interpretation of consent becomes murky. Nowhere is this more evident than in the ongoing debate over criminalising marital rape in India—a contentious and emotionally charged issue that sits squarely in the grey zone of Indian law.
Despite numerous recommendations from legal experts, committees, and courts, Exception 2 to Section 375 of the Indian Penal Code (IPC) still exempts a husband from being prosecuted for raping his wife, provided she is above 18 years of age. This exception creates a paradox: how can the law recognise rape as a heinous violation of consent in all contexts except marriage?
Historical Underpinnings of the Exception
The marital rape exception in Indian law has its roots in a colonial and patriarchal legacy that has long prioritized the sanctity of marriage over the autonomy of women. Introduced through the Indian Penal Code (IPC) of 1860, drafted by Lord Macaulay during British rule, Exception 2 to Section 375 IPC reflects outdated notions that saw a wife as the property of her husband, rather than an individual with bodily rights and agency.
The underlying rationale comes from 18th-century English common law, particularly the views of Sir Matthew Hale, who famously stated in 1736 that “a husband cannot be guilty of a rape committed by himself upon his lawful wife.” This principle rested on the idea that marriage created a permanent, irrevocable consent to sex, essentially erasing the wife's right to refuse. This logic, now rejected by most modern democracies, continues to linger in Indian criminal law.
At the time, the law presumed that the woman, by marrying, had given her perpetual consent to all sexual acts with her husband. As a result, the exception granted immunity to husbands, regardless of the force or violence used. Over the decades, while societal norms and constitutional values have evolved, this colonial-era law has remained static.
Ironically, the same legal system that now champions the right to privacy, equality, and dignity still retains a provision that blatantly contradicts these ideals. The marital rape exception is a clear example of how historical prejudices can persist unless actively reformed through conscious legal and societal shifts.
The Constitutional Dilemma
The continued existence of the marital rape exception in Indian law presents a serious constitutional dilemma, highlighting a fundamental clash between individual rights and institutional protection. At the heart of this conflict lies Article 21 of the Constitution of India, which guarantees every person the right to life and personal liberty. Over the years, the Supreme Court has expansively interpreted this right to include bodily autonomy, sexual privacy, and the freedom to make intimate personal choices.
The landmark judgment in Justice K.S. Puttaswamy v. Union of India (2017)[1] recognized the right to privacy as intrinsic to life and liberty. This jurisprudential shift affirms that a woman retains her autonomy over her body, regardless of her marital status. Further, in Independent Thought v. Union of India (2017)[2], the Court struck down a portion of the marital rape exception for girls aged 15–18, acknowledging that marriage does not imply unconditional or irrevocable consent.
Yet, Exception 2 to Section 375 of the IPC continues to carve out a blanket immunity for husbands, violating Article 14 (right to equality) and Article 15 (prohibition of discrimination on grounds of sex). By treating married and unmarried women differently in cases of sexual violence, the law creates an artificial distinction that cannot withstand constitutional scrutiny.
This inconsistency places courts in a precarious position—while the Constitution demands dignity, equality, and bodily integrity for all, the IPC denies it to a specific class of women. The dilemma is not just legal—it is deeply moral and urgent.
Social vs. Legal Realities
Opponents of criminalising marital rape argue that it could destabilise the institution of marriage, lead to misuse of the law, or be difficult to prove. These concerns, while not entirely unfounded, must be weighed against the real harm faced by women trapped in abusive marriages with no legal recourse for sexual violence.
The National Family Health Survey (NFHS-5) revealed that a significant percentage of Indian women experience spousal violence, and yet marital rape continues to be underreported, unacknowledged, and unpunished. The fear of stigma, lack of awareness, and the legal impunity enjoyed by husbands contribute to this silence.
Moreover, treating consent as irrelevant within marriage sends a dangerous message: that a woman’s autonomy ends at the altar.
Comparative Jurisprudence
Globally, over 100 countries have criminalised marital rape, including the UK, USA, Canada, and Nepal. India’s refusal to follow suit puts it at odds with international human rights norms. The UN Committee on the Elimination of Discrimination against Women (CEDAW) and other international bodies have repeatedly urged India to amend its laws to recognise marital rape as a crime.
Interestingly, India has already acknowledged marital rape as cruelty under civil laws. For instance, under Section 498A IPC and the Protection of Women from Domestic Violence Act, 2005, forced sexual intercourse by a husband may be a ground for divorce or protection orders. However, the absence of criminal sanction under Section 375 IPC leaves a glaring gap.
Judicial Developments and Legislative Inertia
In recent years, the courts have nudged the legislature to reconsider this exception. In the Delhi High Court case RIT Foundation v. Union of India (2022), a split verdict emerged—one judge held the exception unconstitutional, while the other upheld it. The matter is now pending before the Supreme Court, making it a critical moment in the evolution of sexual rights within marriage.
Meanwhile, the legislature remains hesitant. The Law Commission of India’s 172nd and 273rd Reports have recommended removing the exception, yet successive governments have expressed concern about potential misuse and cultural implications.
Striking a Balance
The challenge lies in crafting a legal framework that protects genuine victims without enabling misuse. Possible safeguards may include:
- Stringent evidentiary requirements.
- Gender-neutral language.
- Independent review mechanisms to prevent frivolous prosecutions.
But none of these justifies the continued denial of equal protection of law to married women. The solution is not to avoid criminalisation, but to design it wisely.
Conclusion
The debate over the criminalization of marital rape in India exposes a deeper tension between tradition and constitutional morality. While the institution of marriage has long been revered as sacrosanct, it cannot be immune from the evolving standards of justice, autonomy, and human dignity. The very idea that consent becomes obsolete after marriage is both legally and morally indefensible. By continuing to uphold Exception 2 to Section 375 IPC, the law not only denies equal protection to married women but also perpetuates a culture of silence and impunity.
Constitutional jurisprudence in India has made significant strides in recognizing individual autonomy, sexual privacy, and the right to be free from violence. In this light, the marital rape exception stands as an outdated and discriminatory provision that undermines these progressive developments. The courts have taken bold steps in recent years, but without legislative will, meaningful change remains stalled.
Criminalizing marital rape is not about attacking the institution of marriage; it is about reinforcing the foundation on which it must rest—mutual respect and consent. Just as the law intervenes in cases of domestic violence, cruelty, and dowry harassment within marriage, it must also recognize non-consensual sex as a serious offence, irrespective of marital status.
India, as the world’s largest democracy, must demonstrate that it values the dignity and rights of all its citizens equally. It is time for the law to shed its colonial hangovers and embrace a framework that reflects the realities and rights of women today. Consent must be non-negotiable—within and outside marriage.
References:
Indian Penal Code, 1860, § 375 & Exception 2.
RIT Foundation & Others v. Union of India, W.P. (Crl.) 284/2015, Delhi High Court, Judgment dated 11 May 2022.
Constitution of India, Articles 14, 15, and 21.
Law Commission of India, 172nd Report on Review of Rape Laws, March 2000.
Law Commission of India, 273rd Report: Review of the Criminal Law, October 2017.
National Family Health Survey (NFHS-5), Ministry of Health and Family Welfare, Government of India, 2019–21.
United Nations Committee on the Elimination of Discrimination against Women (CEDAW), Concluding Observations on the Combined Fourth and Fifth Periodic Reports of India, CEDAW/C/IND/CO/4-5, 2014
UN Women, Marital Rape Criminalization: A Global Overview, 2021
[1] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
[2] Independent Thought v. Union of India, (2017) 10 SCC 800: The Supreme Court held that sexual intercourse with a wife between the age of 15 and 18 years is rape, thereby reading down Exception 2 to Section 375 IPC in relation to minors