Rape is defined as any form of sexual assault involving nonconsensual intercourse with a woman in Section 375 of the Indian Penal Code (“IPC”).[1] However, Section 375 Exception 2 exempts unwilling sexual intercourse between a husband and a wife over the age of fifteen from the definition of “rape” and thereby protects such actions from prosecution. After entering into marital intercourse, a wife is presumed to give her husband eternal consent to have sex with her. While practically every country in the world considers unwilling sexual contact between a husband and a wife to be a criminal offence, India is one of the thirty-six countries that has yet to criminalise marital rape.[2] The Supreme Court of India and several High Courts are swamped with writ petitions questioning the legitimacy of this exception, and the Supreme Court recently criminalised undesired sexual contact with a wife between the ages of fifteen and eighteen in a landmark decision.[3] This decision has prompted a surge in writs challenging the constitutionality of Exception 2 as a whole. This Article examines the constitutionality of Exception 2 in light of recent litigation.
Background and Historical Context of Marital Rape in India
Marital rape in India has a complex historical and cultural context. The patriarchal society historically limited women’s rights and autonomy within marriage, perpetuating male authority and control. This has led to societal norms that disregard women’s personal autonomy and bodily integrity, often neglecting or dismissing the issue of non-consensual sexual intercourse within marriages.
The legal framework surrounding marital rape in India has evolved over time, reflecting changing societal attitudes. The Indian Penal Code (IPC), enacted in 1860 during the British colonial era, criminalised rape but included an exception that exempted non-consensual sexual acts committed by a husband against his wife. This exception was based on the notion that marriage implied irrevocable consent to sexual relations. The exemption reinforced the perception of women as the property of their husbands and perpetuated the notion that wives had no agency over their own bodies.
In recent years, India has seen a growing recognition of women’s rights and gender equality. The issue of marital rape has become prominent, with activists urging its acknowledgment and criminalization. Efforts to change the law have been gradual and controversial. Opponents argue against criminalizing marital rape, fearing abuse of the laws and interference in private marital matters. They also express concern about potential damage to cultural values and norms. Progress has been made in raising awareness about marital rape, but there is still much work to be done in terms of legal reform, societal attitudes, and support systems for survivors. A comprehensive approach involving legal changes, education, awareness campaigns, and support services is needed to empower survivors and challenge patriarchal norms sustaining this violence.
Overall, the historical and cultural backdrop of marital rape in India highlights the need for extensive legal and societal reforms to protect individuals’ rights and well-being within married partnerships, as well as to ensure that consent, autonomy, and gender equality are respected and protected.
Judicial Interpretation and Legal Loopholes in India
In India, legal interpretations and legislative loopholes have influenced the subject of marital rape, resulting in problems in addressing and prosecuting occurrences of marital rape. This section dives into some of the most critical issues of judicial interpretation and legal loopholes in India’s marital rape context.
Exception in Section 375[4] of the Indian Penal Code: The Indian Penal Code (IPC) defines rape under Section 375, but it includes an exception clause that exempts non-consensual sexual intercourse by a husband with his wife if she is above a certain age. This exception has been highly criticised as it perpetuates the notion that marriage implies perpetual consent to sexual activity, disregarding the principles of bodily autonomy and consent. The exception in Section 375 has created a legal loophole that hinders the criminalization of marital rape.
Lack of Clarity and Ambiguity in Laws: The lack of a clear and complete legal definition of marital rape in Indian legislation has resulted in ambiguity in understanding and dealing with the issue. Because there is no particular provision criminalising marital rape, the law is applied inconsistently, making it difficult for survivors to seek justice.
Reliance on Faulty Assumptions: In India, erroneous assumptions, such as the belief that marital rape is rare due to cultural norms and the sanctity of marriage, hinder the recognition and prosecution of cases, leading to impunity for abusers. Survivors of marital rape face the burden of proof, making it challenging to establish lack of consent or force due to the private nature of the offense and lack of tangible evidence. Cultural stigma, fear of repercussions, and mistrust in the justice system contribute to underreporting of cases, exacerbated by incidents being under-registered.
Limited Legal Reforms and Slow Progress: Despite efforts to address the issue, India’s progress in marital rape legal reforms has been slow. The exception in Section 375[5] of the IPC still exists, and legislative initiatives to criminalise marital rape have been met with opposition and delays. Legislative problems are aggravated by the absence of significant legislative reforms and political will.
In India, comprehensive legal reforms are needed to recognize marital rape as a crime and protect survivors. This requires engaging in discourse, raising awareness, and advocating for legislative changes that uphold consent, physical autonomy, and gender equality. Training for judges, lawyers, and law enforcement on marital rape dynamics can improve the legal system’s understanding and response to such cases.
The Unconstitutional Marital Exception in Indian Criminal Law: A Violation of Article 14 and Contemporary Gender Equality Principles
The Indian Constitution states that “the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India.”[6] Despite the fact that the Indian Constitution guarantees equality for all, Indian criminal law discriminates against women who are raped by their own husbands.[7]
A married woman was not regarded as an independent legal entity when the IPC was created in the 1860s. Rather, she was seen as her husband’s chattel.[8] As a result, she did not have many of the rights that she now has as an independent legal entity, such as the right to bring a complaint against another person using her own identity.[9] Exception 2, which essentially exempts husbands’ conduct against their wives from being termed “rape,” is heavily influenced and derived from the already existent doctrine of blending the woman’s identity with that of her husband. This theory has its origins in British colonial administration throughout the Victorian era.[10]
During the nineteenth century, India was a British colony.[11] English laws and Victorian values heavily affected all Indian legislation enacted at the time. The marital exception to the definition of rape in the IPC was drafted in response to Victorian patriarchal traditions that did not accept men and women as equals, did not allow married women to own property, and blended husband and wife identities under the “Doctrine of Coverture.”[12]
However, times have changed. Husbands and wives now have separate and independent legal identities under Indian law, and much modern jurisprudence is particularly focused on the protection of women. This concern is reflected in the slew of statutes enacted since the turn of the century to protect women from violence and harassment, including “The Protection of Women from Domestic Violence Act” and the “Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.”
Exception 2 violates Article 14’s right to equality by discriminating against married women by denying them equal protection from rape and sexual harassment. The Exception splits women into two classes based on their marital status and protects males from offences committed against their spouses.[13] As a result, the Exception allows married women to be victimised for no reason other than their marital status while protecting unmarried women from the same offences.
The distinction between married and unmarried women in Exception 2 also violates Article 14 since the categorization produced has no reasonable relationship to the statute’s underlying objective. Budhan Choudhary v. State of Bihar[14] and Anwar Ali Sarkar v. State of West Bengal,[15] The Supreme Court ruled that any classification made under Article 14 of the Indian Constitution is subject to a reasonableness test that can be passed only if the classification is rationally related to the goal of the act. However, Exception 2 defeats the objective of Section 375[16], which is to protect women and punish those who engage in the barbaric act of rape. Exempting husbands from penalties runs completely counter to that goal. Simply put, whether a woman is married or single, the repercussions of rape are the same.
Furthermore, because they are legally and financially committed to their spouses, married women may find it more difficult to avoid hostile conditions at home. In truth, Exception 2 encourages men to aggressively engage in sexual intercourse with their spouses since they know their actions are neither prohibited nor penalised by the law. Because there is no meaningful link between the categorization formed by the Exception and the underlying goal of the Act, it fails the reasonableness test and so violates Article 14[17] of the Indian Constitution.
Exception 2: Violation of Indian Constitution Article 21 – Right to Life, Personal Liberty, and Dignity
Exception 2 is also a violation of Indian Constitution Article 21[18] which declares that “no one shall be denied his life or personal liberty except in accordance with the legal procedure.” In a number of decisions, the Supreme Court has construed this phrase to go beyond the simply literal protection of life and liberty. It has instead ruled that the rights enshrined in Article 21[19] include, among other things, the rights to health, privacy, dignity, safe living conditions, and a safe environment.
Courts have recently begun to recognise a right to abstain from sexual intercourse and to be free of unwelcome sexual activity, entrenched in these broader rights to life and personal liberty. In The State of Karnataka v. Krishnappa, the Supreme Court found that “sexual violence, apart from being a dehumanising act, is an unlawful intrusion into a female’s right to privacy and sanctity.” Non-consensual sexual intercourse was held to be bodily and sexual violence in the same case. Later, in Suchita Srivastava v. Chandigarh Administration,[20] The Supreme Court connected the right to choose sexual activity with Article 21 rights to personal liberty, privacy, dignity, and bodily integrity.
Recently, the Supreme Court clearly recognised a right to choose personal relationships in Article 21. The Supreme Court recognised the right to privacy as a fundamental right of all citizens in Justice K.S. Puttuswamy (Retd.) v. Union of India,[21] holding that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.” Under coercion, sexual cohabitation is a violation of that fundamental right, The preceding judgements make no distinction between the rights of married and unmarried women, and there is no opposing ruling indicating that marital association violates an individual’s right to privacy. Thus, the Supreme Court has recognised the right of all women, regardless of marital status, to abstain from sexual activity as a fundamental right guaranteed by Article 21 of the Constitution.
Exception 2 also contradicts Article 21’s right to a healthy and dignified life. As previously stated, the “right to life” articulated in Article 21 is not simply a right to exist. For example, there is no doubt that every Indian citizen has the right to healthcare and that the state is obligated to provide for the health of its citizens. In this line, courts have often ruled that the “right to life” includes the right to live with dignity.[22] However, the existence of Exception 2, which fails to dissuade husbands from participating in acts of forced sexual contact with their wives, has a negative impact on women’s physical and mental health as well as their capacity to live with dignity.
Judicial Interpretation and Legal Loopholes
In India, judicial interpretation of legislation pertaining to marital rape has played an important role in establishing the legal landscape and addressing the issue. However, some court interpretations and legislative loopholes have hampered effective prosecution and protection of marital rape survivors. This section dives into some of the most important issues of Indian judicial interpretation and legal loopholes.
Exception in the Indian Penal Code Section 375[23] Rape is a crime in India under Section 375 of the Indian Penal Code (IPC). An exception under this clause specifies that sexual intercourse between a husband and his wife beyond the age of 15 is not considered rape. This exclusion suggests that coerced sexual acts within a marriage are not criminalised.
The exception for marital rape in India sparks heated debate, as it undermines women’s rights, erasing their bodily autonomy and consent within marriage. Inconsistent interpretations by courts due to the lack of clear definitions and consent standards in Section 375 of the IPC[24] further disregard individual autonomy and bodily integrity. Survivors face challenges in the legal system, with underreporting and low conviction rates exacerbated by societal attitudes and insufficient awareness among law enforcement and judicial officers. However, recent progressive judicial pronouncements recognize the need to address marital rape, advocating for legal reforms to criminalize it. Comprehensive legal changes, awareness-raising, and training for judicial personnel are essential to protect survivors and uphold gender equality.
Sociocultural Factors Influencing Marital Rape
Marital rape is influenced by deeply rooted sociocultural factors like traditional gender roles, patriarchy, power dynamics, social standards, and cultural practices. Understanding and addressing these elements are crucial to combatting and eradicating marital rape. Gender roles and patriarchal norms in societies like India perpetuate a power imbalance, normalizing sexual violence and undermining women’s autonomy and consent. Societal stigmas and victim-blaming silence survivors and deter them from seeking help.
Survivors of marital rape often face victim blaming, reinforcing harmful narratives and discouraging them from seeking justice.[25]
Sociocultural factors significantly impact marital rape, influenced by traditions, social norms, and cultural practices. Some societies view marriage as implicit consent to sex, denying the importance of ongoing communication and mutual agreement. Addressing marital rape requires challenging patriarchal structures, promoting gender equality, and engaging in critical discussions about consent and cultural practices. Efforts should focus on education, advocacy, community engagement, and legal reforms to uphold individuals’ autonomy and dignity within marital relationships.
The Conclusion
Recommendations for Legal Reforms and Policy Interventions on Marital Rape in India:
Criminalise Marital Rape: Remove the exception in Section 375 of the Indian Penal Code (IPC) that exempts marital rape from prosecution. Enact specific legislation criminalising all instances of marital rape, ensuring equal legal protection for all individuals.
Consent should be defined as follows: Within the legal framework, provide a clear definition of consent, underscoring the necessity of affirmative, continuing, and voluntary consent in intimate relationships. Give suggestions for spotting and comprehending a lack of consent in marital circumstances.
Increase Legal Protections: Enhance marital rape legal protections by extending the statute of limitations, removing reporting barriers, and adopting survivor-centric legal procedures. Provide specialized training to judges, prosecutors, and law enforcement to handle cases effectively and empathetically. Implement widespread awareness campaigns targeting the general public, educational institutions, and key stakeholders to educate about consent, marital rape, and survivors’ rights. Integrate age-appropriate sex education in school curricula to promote a culture of consent and healthy relationships.
Support Services and Rehabilitation: Create specialised support services for survivors of marital rape, such as psychotherapy, medical treatment, and legal help. Ensure that these services are available and accessible in both urban and rural regions. Create rehabilitation initiatives to address survivors’ long-term physical, psychological, and socioeconomic repercussions.
Collaboration and Training: Encourage collaboration among law enforcement authorities, healthcare experts, social workers, and non-governmental organisations (NGOs) to provide a coordinated response to incidents of marital rape. Conduct regular training sessions for professionals to improve their awareness of marital rape dynamics, trauma-informed care, and victim support.
Data gathering and research: Improve data gathering procedures so that the prevalence and consequences of marital rape can be reliably captured. Conduct an extensive study to better understand sociocultural determinants, reporting hurdles, and intervention effectiveness. Use this evidence to guide policy and programmatic development.
International duties: Boost efforts to meet international human rights duties and recommendations, such as those specified in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Collaborate with international organisations and bodies to share best practises, resources, and expertise in combating marital rape.
Recruit Men and Boys: Encourage men and boys to combat marital rape through gender-awareness programs promoting equality and positive masculinity. Engage men in advocacy and preventative efforts. Establish a robust monitoring system for law reforms and awareness campaigns, adjusting tactics based on feedback to ensure sustained progress.
These ideas, if fully adopted, have the potential to bring about significant legal and societal changes in India to combat marital rape. They seek to give survivors justice, support, and protection, as well as challenge cultural norms and promote a culture of consent and gender equality.
[1] Pen. Code, 1860 § 375, No. 45
[2] Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016.
[3] Independent Thought v. Union of India, (2013) 382 SCC (2017) (India).
[4] Pen. Code, 1860 § 375, No. 45
[5] Pen. Code, 1860 § 375, No. 45
[6] INDIA CONST. art. 14.
[7] Anuradha, India Judiciary and Judicial Reforms, 3 International Journal Of Law Management & Humanities, 2020, https://www.ijlmh.com/wp-content/uploads/India-Judiciary-and-Judicial-Reforms.pdf
[8] To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6) Harv. L. Rev. 1255, 1256 (1986).
[9] See generally id.
[10] Jill Elain Hasday, Consent and Contest: A Legal History of Marital Rape, 88 Calif. L. Rev. 1373 (2000)
[11] Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India); Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, No. 14, Acts of Parliament, 2013 (India).
[12] Sarthak Makkar, Marital Rape: A Non-criminalized Crime in India, HARWARD HUMAN RIGHTS JOURNEL (July 19, 2023, 6:18 PM), https://harvardhrj.com/
[13] Hridhima Biswas, MARITAL RAPE, A HEINOUS CRIME STILL LEGALISED IN INDIA, IJALR (july 19, 2023 6:32 PM), https://ijalr.in/volume-1/issue-4/marital-rape-a-heinous-crime-still-legalised-in-india-by-hridhima-biswas-2/
[14] Budhan v. State of Bihar, AIR (1955) SC 191 (India).
[15] State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75 (India).
[16] Pen. Code, 1860 § 375, No. 45
[17] INDIA CONST. art. 14.
[18] INDIA CONST. art. 21.
[19] INDIA CONST. art. 21.
[20] Suchita Srivastava v. Chandigarh Administration, (2008) 14 SCR 989 (India)
[21] Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161 (India).
[22] C.E.S.C. Ltd. v. Subhash Chandra, (1992) 1 SCC 441 (India).
[23] Pen. Code, 1860, § 375
[24] Pen. Code 1860, § 375
[25] Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India); Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, No. 14, Acts of Parliament, 2013 (India).
Author: Asad Naushad Khan
Juris Centre 