1. Introduction
"When a woman is raped by a stranger, she has to live with a frightening memory. When she is raped by her husband, she has to live with the rapist.”
- David Finkelhor and Kersti Yll
In India, the Constitution guaranteeing equality, dignity, and freedom exclusive of any discrimination, yet one of the most glaring contradictions lies in the law itself refusing to criminalise the offence of Marital Rape. Defined as the act of rape[1] committed within a marriage without the consent, where the offender is the victim’s legally wedded spouse, this exception is carved out under Exception 2 to Section 375 of the IPC, 1860 which state “Sexual intercourse by a man with his own wife, her not being under eighteen years of age, is not rape”. And is now replication in Section 63 of the Bhartiya Nyaya Sanhita, 2023, continuing to shield husbands from prosecution, treating consent as irrelevant once a marriage has taken place.
While over a hundred countries across the world have struck down similar exceptions, India holds on to the belief that marriage automatically implies consent, even when that belief contradicts the lived experiences of countless women. This legal position has created a deeply unequal standard where a woman raped by a stranger has legal remedies, while a woman raped by her husband is left without recourse.
Consent isn’t determined by whether two people are married; it must be freely given, continuous, and honoured every time, in every circumstance. Yet, Indian law treats marriage not as a partnership of equals but as a space where one partner’s bodily autonomy can be overridden without consequence. Sexual violence within marriage is not merely a physical act but a profound violation of a woman’s agency, her autonomy, and her fundamental right to control her own body.
2. Historical Roots & Colonial Legacy
This exception is not a constitutional creation but a colonial inheritance. The roots of this lie in the Doctrine of Coverture, Anglo-American common law, originating from feudal Norman traditions, that established a woman’s subordinate legal status within the marriage.[2] This idea was formally codified in the 17th century by Sir Matthew Hale, a chief justice in England, who wrote in his work, History of the Pleas of the Crown[3] that a husband cannot be guilty of raping his wife because she has “given herself in kind” to him through marriage, and this consent cannot be retracted. This doctrine became the legal norm in colonial British law and was incorporated into the Indian Penal Code, where it has remained largely unchanged for over a century. Ironically, even the UK, whose legal system planted this exception in India abolished it in 1991 through the landmark case R v. R[4].
Even post-independence India has overhauled nearly every aspect of its criminal justice system, yet this particular colonial clause has endured. This suggests not legal inertia but a deeper discomfort with challenging patriarchal control within marriage. By preserving this archaic exception, Indian law prioritises male privilege over female autonomy and continues to treat married women as bound by an unspoken, lifelong sexual contract.
3. Judicial Interpretations
The Indian judiciary has long walked a tightrope, recognised women’s autonomy, yet hesitating to fully confront the marital rape exception. While some rulings have challenged validity of the offence of marital rape Yet, no court has delivered a definitive, unified stand. In the case of the Harvinder Kaur vs. Harmander Singh[5], The High Court of Delhi held that the Constitution of India could not intervene in the domestic matters as it would destroy the institution of marriage. The court held that within the private sphere of marriage and the home, constitutional protections such as Article 14 and Article 21 do not apply.
The turning points came in the case of Independent Thought v. Union of India[6], where the apex court read down the marital rape exception to raise the minimum age of consent within marriage from 15 to 18. The Court held that the exception, in allowing sexual intercourse with minor wives, violated Articles 14, 15, and 21 of the Constitution. While the ruling was technically limited to child marriages, its implications questioned the larger validity of the marital rape exception itself. Other courts have sent mixed signals. The Gujarat High Court, in Nimeshbhai Bharat Bhai Desai v. State of Gujarat[7], questioned the legitimacy of presumed consent in marriage and stated that the law must provide security to every woman (married or unmarried) to protect her corporal independence.
Similarly, in Hrishikesh Sahoo v. State of Karnataka[8], the court passed the order recognizing marital rape as an exception to be violative of the right to equality. In RIT Foundation v. Union of India[9], the Delhi High Court delivered a much anticipated but divided verdict. Justice Rajiv Shakdher ruled that granting husbands immunity from prosecution for marital rape is unconstitutional. He also struck down Exception 2 to Section 375 and Section 376B of the IPC, finding them in violation of Article 14 of the Constitution. However, Justice C. Hari Shankar stated that he does not agree with it and has held that Exception 2 to Section 375 does not violate Constitution of India and that the exception is based on an intelligible differentia. The split verdict has now placed the matter squarely before the Supreme Court, which has yet to pronounce a final decision.
These judgments reveal a judiciary torn between constitutional morality and legislative restraint. While progressive judges have highlighted the contradiction between the exception and women’s rights, the absence of a clear legislative mandate continues to shield perpetrators under the garb of matrimony. This ongoing deferral to legislative action appears less like respect for separation of powers and more like reluctance to challenge patriarchal comfort zones. The absence of legislative action cannot justify inaction from the courts, especially when fundamental rights are at stake. The judiciary has both the authority and responsibility to interpret the Constitution in a way that protects individual dignity, regardless of marital status. Until the Supreme Court takes a clear and principled position, the law will continue to treat married women as lesser rights-holders when it comes to control over their own bodies.
4. Constitutionality Perspective
The Marital Rape exception is not only socially wrong but also constitutionally indefensible. Under Article 14[10], the State is required to treat all persons equally under the law. But the Exception 2 of Section 375 of IPC creates an arbitrary distinction between married and unmarried women, providing legal protection to one while denying it for other, for the same act. This classification fails the reasonable classification and intelligible differentia tests laid down by the Supreme Court in cases such as Budhan Choudhry v. State of Bihar[11]and State of West Bengal v. Anwar Ali Sarkar[12]. Simply put, the repercussions of rape are the same whether or not a woman is married or single.
Exception 2 also violates Article 21, which guarantees every person the right to life and personal liberty. Over time, the Apex courts have interpreted this to embrace the right to dignity, privacy, and bodily integrity. In State of Karnataka v. Krishnappa[13], the Supreme Court recognised sexual violence not only as a brutal act but also as an illegal violation of a woman's right to privacy and dignity. After that, in Suchita Srivastava vs. Chandigarh Administration[14], the Apex Court compared the right to choose alternatives related to sexual activity with that of right to personal dignity, liberty, and bodily integrity within the ambit of Article 21. In Justice K.S. Puttaswamy v. UOI[15], the Court reaffirmed that privacy includes the freedom to make intimate personal decisions. Forcing a woman to engage in sexual activity without her consent even if by her husband is a clear violation of these rights.
Constitutional rights are not contingent upon marital status. They don’t get vanish when a woman enters marriage. The law must not treat the threshold of matrimony as a boundary where autonomy, dignity, or the right to say no stops applying. If the Constitution guarantees equality and personal liberty to all, then any law that strips a woman of these rights within marriage is not just outdated but also unconstitutional and must be stuck down. The longer we justify this exception, the more we legitimise violence through silence.
5. Consent vs. Silence
What makes the Marital Rape exception unsettling is not just the legal endurance but the patriarchal mindset it protects. In India, consent within marriage is often replaced by expectation which is shaped by a culture that teaches women sex is a duty, not a right. This belief is not limited to outdated custom, but it also echoed by the State itself. In an affidavit before the Delhi High Court in 2022, the Union Government argued that criminalising marital rape would be excessively harsh and might destabilise the institution of marriage. It went further, claiming that marital relations cannot be viewed through the lens of individual, isolated incidents[16]. But when sexual violence is dismissed as an unavoidable feature of marriage, we aren’t protecting families, we’re protecting impunity.
The National Family Health Survey reveals that over 83% of women who reported sexual violence identified their husbands as the perpetrators[17]. Yet, the law of this country refuses to call it rape. Instead, women are offered civil remedies under the Domestic Violence Act, as if rape becomes more tolerable once it takes place in a matrimonial home. Presuming marriage with unconditional consent is legally unsound and ethically indefensible. Consent is not symbolic. It must be present, personal, and continuous. When the law upholds a belief that consent can be signed away with a marriage certificate, it turns the silence of survivors into a legal position and that is a betrayal no society or state should defend.
6. Conclusion
For too long Indian law has treated marriage as a zone of exception, where the ordinary rules of consent, bodily autonomy, and personal dignity of women are quietly suspended. This exception, inherited from colonial ideology and sustained by patriarchal logic, assumes that a woman, by marrying, has given permanent and irrevocable consent to sex. This view of implied consent reduces a wife’s autonomy to a legal myth and her silence to submission. It stands in direct conflict with constitutional guarantees and reinforces a cruel double standard that the law protects a woman’s right to say no unless she says it to her husband.
But the consent cannot be conditional. It cannot be traded away in a marital contract or overridden in the name of cultural tradition. If the law continues to deny married women the right to refuse sex, it does not just uphold an outdated exception, it imposes silence on survivors of violence within their own homes. Criminalising marital rape is not a threat to the institution of marriage; it is a commitment to justice within it. It is time for Indian law to stop asking whether society is ready and instead ask whether justice can wait any longer. Because no woman should ever need legal permission to reclaim ownership over her own body, even in marriage.
REFERENCES
[1] Defined under Section 375 IPC, 1860 which later (now replaced by Section 63 of the Bharatiya Nyaya Sanhita, 2023).
[2] The Editors of Encyclopaedia Britannica, “Coverture”, Encyclopaedia Britannica (Oct. 8, 2007), available at https://www.britannica.com/topic/coverture (last visited Jun. 28, 2025).
[3] Matthew Hale, Historia Placitorum Coronae, Vol. 1, 629 (London: Professional Books, 1st edn. 1736, repr. 1971).
[4] R v. R, (1992) 1 AC 599 (HL).
[5] Harminder Kaur v. Harmander Singh, AIR 1984 Del 66.
[6] Independent Thought v. Union of India, (2017) 10 SCC 800.
[7] Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 Cri LJ 732 (Guj).
[8] Hrishikesh Sahoo v. State of Karnataka, SLP (Crl) Nos. 4063–4064 of 2022.
[9] RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404.
[10] The Constitution of India, 1950.
[11] Budhan Choudhry v. State of Bihar, AIR 1955 SC 191.
[12] State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
[13] State of Karnataka v. Krishnappa, (2000) 4 SCC 75.
[14] Suchita Srivastava v. Chandigarh Administration, AIR 2010 SC 235.
[15] K.S. Puttaswamy (Retd.) v. Union of India, AIR 2017 SC 4161.
[16] LiveLaw News Network, “Bringing Offence of 'Rape' Within Marriage 'Excessively Harsh', Other Remedies Exist: Centre Tells Supreme Court”, LiveLaw, May 9, 2024, available at: https://www.livelaw.in/top-stories/supreme-court-centre-opposes-challenge-to-marital-rape-exception-says-married-women-already-protected-271527 (last visited Jun. 28, 2025).
[17] Ministry of Health and Family Welfare, National Family Health Survey – 4 (2015–16) (Government of India, 2016).