Introduction
Rape is an act of sexual intercourse with a person forcefully, without the consent of such person against whom it is committed amounting to a criminal offence as defined under section 63[1] of the Bharatiya Nyaya Sanhita, 2023.The definition under the existing law is broad, inclusive of the acts of penetration, insertion as well as application of mouth to the private parts of a female without her consent or will. The offence further deals with exceptions, one being the medical procedure and the other which includes sexual intercourse by a man with his wife. The latter exception which states that ‘sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape’ is however a point of debate as to its constitutional validity and whether it truly preserves the sanctity of the institution of marriage. In view of the above, this article aims to examine the significant legal gap concerning the non-criminalization of marital rape in India and its profound implications for the rights and well-being of married women.
Current status in India
The exception to the offence of rape is a point of contention where one view argues the exception being constitutionally invalid due to violation of fundamental rights of women and willful disregard of their bodily integrity, while the opposing view lays down emphasis on availability of other remedies in marital disputes and maintains the need to preserve the institution of marriage.
Recent development in this matter is the judgement of Hon’ble Supreme Court in the case of Independent Thought v Union of India[2] which read "15 years" in exception 2 under section 376[3] of IPC to be "18 years" to hold that sexual intercourse with minor wife, below 18 years, is rape emphasising on Article 21[4] of the Constitution which gives Right to live with dignity to a girl child.
Varied Stance of High Courts
The stance of high courts with regard to validity of marital rape exception remains divided, leading to uncertainty in this matter.
Justice M Nagaprasanna in the case of Hrishikesh Sahoo v State of Karnataka & Ors[5] said, “A man is a man; an act is an act; rape is a rape, be it performed by a man the "husband" on the woman "wife", emphasising that a man who is well acquainted with a woman and performs all the ingredients as is found in pre or post amendment to Section 375 can be proceeded against for offences punishable under Section 376, thereby establishing that a man sexually assaulting or raping a woman is amenable to punishment under Section 376 of IPC.[6]
The Judge explained that the exemption of the husband on committal of such assault/rape, in the peculiar facts and circumstances of this case, cannot be absolute, as no exemption in law can be so absolute that it becomes a license for the commission of a crime against society. Therefore, it was established that a brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape.
The point of debate centres on the exception’s validity and alignment with constitutional principles. Several high courts have affirmed the validity of the exception. For instance, the Chhattisgarh High court in the case of Gorakhnth Sharma v. State of Chhattisgarh[7], acquitted the husband in a criminal appeal filed against the judgement of trial court, stating that if wife is not below 15 years then any sexual intercourse or sexual act by the husband with her wife cannot be termed as rape under the circumstances, as such absence of consent of wife for unnatural act loses its importance.
Similarly, in the case of Nafees khan versus the State of Madhya Pradesh and Ors[8], the court ruled that an act of forced unnatural sex between a husband and wife if non-consensual, it does not amount to rape, provided the wife is not below the age of 15, further stating that the consent of wife is immaterial.
Various courts have maintained this stance highlighting that the institution of marriage takes precedence over the bodily autonomy of women.
Constitutional validity: Point at issue
Antithetical to constitutional values
The act of non-consensual sexual intercourse or rape is abhorrent and inherently violative of the basic right to life and liberty of a woman under Article 21 as well as Right to equality under Article 14 of the Indian Constitution. Such an act is an offence not just against the victim but the society at large and the same violates a woman's right to equality, dignity, bodily integrity, personal and sexual autonomy, bodily and decisional privacy, and reproductive choices.[9]
As per Article 14 of the Constitution of India "the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India”. The marital rape exception however, decriminalizes the act of non-consensual intercourse by a husband upon his wife and is, therefore, unconstitutional.
The Court in the case of Hrishikesh Sahoo observed that post-Republic, India has been governed by the Constitution which treats women as equal to men and considers marriage as an association of equals stating that, "The Constitution does not in any sense depict the woman to be subordinate to a man...Under the Constitution, the rights are equal; protection is also equal…Therefore, a woman being a woman is given certain status; a woman being a wife is given a different status. Likewise, a man being a man is punished for his acts; a man being a husband is exempted for his acts. It is this inequality that destroys the soul of the Constitution which is Right to Equality."[10]
Violative of rights of married women
The marital rape exception triggers the discrimination against women based on their marital status. It perpetuates the patriarchal norms and denies married woman the same legal protections against sexual offences as afforded to others. What matters is that a rapist being the husband of the victim is not a justification or does not make such act less injurious or degrading. It might even have more detrimental impact on the mental and physical well-being of the victim.
In a split verdict in RIT FOUNDATION v. THE UNION OF INDIA[11], from the Division Bench of Rajiv Shakdher and C. Hari Shankar, JJ, Justice Rajiv Shakdher laid down their opinion that the immediate deleterious impact of the provisions of Marital rape exception is that while an unmarried woman who is the victim of the offence of rape stands protected and/or can take succour by taking recourse to various provisions of the IPC and/ the Code, the same regime does not kick-in if the complainant is a married woman asserting that sexual assault which falls within the four corners of Section 375 of the IPC needs to be labelled as rape irrespective of whether it occurs within or outside the bounds of marriage.[12]
Opposing view
Availability of alternate remedies
Advocates of validity of the marital rape exception argue upon the availability of alternate remedies in marital disputes such as the protection of women and children from domestic violence act, 2005[13] and provisions for cruelty[14] and sexual assault[15] under the Bharatiya Nyaya Sanhita, 2023 and remedy of divorce on the ground of cruelty[16].
Maintaining sancity of institution of marriage
Justice Shankar in the split verdict in the case of RIT Foundation v Union of India[17] stated that “Marriage, unquestionably, does not entitle a husband to coerce his wife into sex, if she is not inclined. The impugned Exception does not, however, either expressly or by necessary implication, confer, on the husband in a marriage, an entitlement to insist on sex with his wife, against her willingness or consent”[18], emphasising that the expectation of sex of the husband, with his wife is, therefore, a legitimate expectation, a healthy sexual relationship being integral to the marital bond.
Justice Shankar elaborated his observation that if the legislature feels that allegation of rape should find no place in the institution of marriage, it does not render the exception unconstitutional.[19]
Evidentiary difficulties
Consent of the wife is an intricate part to decide the offence of marital rape. However, in a relationship of marriage wherein spouses cohabit and share an intimate connection, it would pose a great difficulty in gathering evidence and relying on such evidence. This further could pose a risk of misuse of the law for selfish motives of wives against their husbands in marital disputes.
The way forward
Rape is a heinous crime not only against women, but a society as whole. It adversely impacts the physical and mental well- being of the victim. Only robust legal protections can ensure justice for victims of such offences. Consent of a woman to sexual acts in a marriage should not be a preconceived notion, the rights of both individuals should be at par. However, the marital rape exception bars women from accessing legal protection solely on the basis of marital status even though the physical and psychological harm suffered remains just as severe, if not worse, making it violative of their Right to life and personal liberty enshrined under Article 21[20] of the constitution.
There is a dire need for the legislature to remove the exception from the existing law and provide an equal punishment for such a barbaric offence. Striking off this exception would not only ensure the protection of dignity and bodily autonomy of women regardless of their marital status but also help strengthening the institution of marriage recognising the individual rights of people and mutual respect.
The same was suggested by Justice Verma Committee[21] in its report in 2013. The committee recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual acts. Therefore, with regard to an inquiry about whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant.
WORK CITED
[1] The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), s. 63.
[2] Independent Thought v. Union of India, (2017) 10 SCC 800.
[3] The Indian Penal Code, 1860 (Act 45 of 1860), s. 376.
[4] The Constitution of India, art. 21.
[5] Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371.
[6] Husband Raping A Wife Is Amenable To Punishment Under Section 376 IPC: Karnataka High Court On Marital Rape, available at: https://www.livelaw.in/top-stories/husband-raping-wife-punishment-section-376-ipc-karnataka-high-court-marital-rape-194830 (last visited on June 27, 2025).
[7] Gorakhnth Sharma v. State of Chhattisgarh (2025) SCC OnLine Chh 2287.
[8] Nafees Khan v. State of M.P., (2025) SCC OnLine MP 3217.
[9] Exception For Marital Rape Based On An Outdated Concept Of Marriage Presuming Consent : Amicus Curiae Tells Delhi High Court Nupur Thapliyal, available at: https://www.livelaw.in/top-stories/delhi-high-court-marital-rape-section-375-ipc-marriage-consent-amicus-curiae-189432?fromIpLogin=43944.031252891145 (last visited on June 27,2025).
[10]Husband Raping A Wife Is Amenable To Punishment Under Section 376 IPC: Karnataka High Court On Marital Rape, available at https://www.livelaw.in/top-stories/husband-raping-wife-punishment-section-376-ipc-karnataka-high-court-marital-rape-194830?fromIpLogin=26789.31198298149 (last visited on June 28, 2025).
[11]RIT Foundation v. Union of India, (2022) 3 HCC (Del) 572.
[12] Id., at 10.
[13] The Protection of Women from Domestic Violence Act, 2005 (Act of 2005).
[14] The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), ss. 85,86.
[15] The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), s. 74.
[16] The Hindu Marriage Act,1955 ( Act 25 of 1955), s. 13.
[17] Supra note 11 at 4.
[18] Split Verdict on Criminalisation of Marital Rape| Can a Husband be labelled as a rapist? Does MRE provides impunity to offender? One says ‘Yes’, other says ‘No’ [DETAILED REPORT], available at: https://www.scconline.com/blog/post/2022/05/12/split-verdict-on-criminalization-of-marital-rape-can-a-husband-be-labelled-as-a-rapist-delhi-high-court/ ( last visited on June 28, 2025)
[19] Ibid.
[20] Id., art. 21.
[21] Justice Verma Committee, “Report of the Committee on Amendments to Criminal Law” (January, 2013).