Consent or Confinement: A Legal Analysis of Marital Rape in India and Its Conflict with Constitutional Guarantees of Equality and Dignity

Abstract

Marital rape is one of the most difficult and least addressed issues in Indian criminal law^[1]. Although the Indian Constitution guarantees every individual equality, dignity, and personal liberty under Articles 14, 15, and 21^[2], the law still makes an exception for husbands under Section 375 of the Indian Penal Code^[3]. This means that forced sexual intercourse within marriage is not recognised as rape^[4], which effectively denies married women the same legal protection as unmarried women^[5]. This article looks at the historical background of the marital rape exception, showing how it was shaped by colonial laws and outdated social attitudes^[6]. It also examines why this exception violates constitutional principles^[7] and how it conflicts with international human rights standards that India has agreed to follow^[8]. By comparing India’s position with other countries that have already criminalised marital rape^[9], and by studying recent Indian court decisions^[10]The article highlights the urgent need for reform^[11]. It argues that criminalising marital rape is essential not only to protect women’s rights^[12] but also to bring Indian law in line with the values of equality, dignity, and justice promised by the Constitution^[13].

Introduction

The institution of marriage has long been celebrated in India as a sacred bond, one that is often placed beyond criticism or legal interference^[14]. While this cultural idea of marriage as “holy” is deeply valued, it has also been used as a shield to protect certain unjust practices from scrutiny^[15]. One of the most troubling outcomes of this is the continued legal exemption of marital rape from criminal liability^[16]. In simple terms, while the law punishes rape outside marriage, it refuses to recognise the same act as a crime within marriage^[17]. The assumption is that by marrying, a woman has given her husband permanent and unconditional consent to sexual relations^[18]. This outdated presumption strips a wife of her right to say “no,” reducing her autonomy to mere confinement within the marital relationship^[19]. Such a legal gap is not only unfair but also raises an important question: can the bond of marriage ever be allowed to take away the constitutional guarantees of equality, dignity, and liberty that every individual married or unmarried is promised under the Constitution^[20].

Thesis Statement

This paper argues that the marital rape exception under Section 375 of the Indian Penal Code is unconstitutional because it denies married women the rights to equality, dignity, and personal liberty guaranteed under Articles 14, 15, and 21 of the Indian Constitution^[21]. The article further contends that retaining this exception perpetuates patriarchal norms^[22], contradicts India’s international human rights obligations^[23], and undermines the transformative spirit of the Constitution^[24]. Criminalising marital rape is therefore not only a matter of legal reform but also a constitutional and moral imperative to uphold gender justice^[25].

Legal and Constitutional Framework

 Section 375 and Exception 2 of the IPC defines the offence of rape^[26]. It contains Exception 2, which states:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape^[27].”

This means that the law gives immunity to husbands, assuming that consent to sexual intercourse is automatic and permanent once marriage takes place^[28]. It denies married women the legal protection that every other woman enjoys against sexual violence^[29]. The Supreme Court in Independent Thought v. Union of India 2017 slightly reduced the scope of this exception^[30]. It held that sexual intercourse with a wife between the ages of 15 and 18 amounts to rape, because child marriage cannot take away the rights of minor girls^[31]. However, this judgement only protects minors^[32]. For adult women, the marital rape exception still remains intact, leaving them without recourse under criminal law^[33]. In short, the law continues to treat marriage as a shield that protects husbands, even when they commit acts of sexual violence^[34].

• Constitutional Rights Implicated

The marital rape exception raises serious constitutional concerns because it clashes directly with fundamental rights guaranteed to all citizens^[35]:

Article 14 Equality before law requires equal treatment under the law^[36]. Yet, the marital rape exception creates an arbitrary division between married and unmarried women^[37]. An unmarried woman can prosecute rape, but a married woman cannot, even if the act is the same^[38]. This unequal treatment is clearly discriminatory and fails the test of equality^[39].

Article 15 Prohibition of discrimination on grounds of sex. The marital rape exception, discriminates against women, since only women can be victims of marital rape^[40]. By excusing the crime simply because the perpetrator is the husband, the law reinforces gender inequality and denies protection to women based on their marital status^[41].

Article 21 Right to life and personal liberty which includes dignity, bodily autonomy, and privacy^[42]. Forced sexual intercourse within marriage violates each of these rights^[43]. The Supreme Court in Justice K.S. Puttaswamy v. Union of India (2017) affirmed that privacy includes the right to control one’s body and personal choices^[44]. While the case did not specifically deal with marital rape, its recognition of bodily autonomy directly strengthens the arguement that marriage cannot erase a woman’s right to say “NO”^[45] these constitutional provisions make it clear that the marital rape exception is not only outdated but also unconstitutional^[46].

• International Human Rights Obligations

India is also bound by its international commitments, which emphasise the protection of women against violence and the importance of consent^[47]:

CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women)
 India ratified CEDAW in 1993^[48]. Under this treaty, the state has a duty to eliminate all forms of discrimination against women, including violence within the family^[49]. By retaining the marital rape exception, India fails to uphold its treaty obligations^[50].

Other International Norms Several international declarations and guidelines, such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) underline the importance of dignity, equality, and freedom from violence^[51]. These principles make it clear that consent must be central to all sexual relationships, including within marriage^[52]. Many countries have already reformed their laws to criminalise marital rape, recognising that consent cannot be presumed simply because of marriage^[53]. India’s continued exemption stands out as a violation of both international standards and its own commitments^[54].

Judicial Precedents

Independent Thought v. Union of India (2017)

What the case was about: This case directly challenged Exception 2 to Section 375 of the IPC, but only in the limited context of child brides between the ages of 15 and 18^[55]. At the time, the exception effectively meant that if a man had sexual intercourse with his wife who was over 15, it was not considered rape even though the Protection of Children from Sexual Offences Act (POCSO) set the age of consent at 18^[56].

What the Court decided: The Supreme Court resolved this conflict by holding that the marital rape exception was unconstitutional for girls under 18^[57]. In other words, sex with a wife under 18 would now amount to statutory rape, bringing it in line with POCSO and child protection laws^[58].

Limitations of the judgment: While this was an important step forward for protecting child brides, the Court stopped short of addressing the larger issue of marital rape of Adult women^[59]. The main exception for wives above 18 years remains in place, and adult married women still cannot prosecute their husbands for rape^[60].

Delhi High Court Split Verdict (2022)

In 2022, a batch of petitions was filed by organisations such as the RIT Foundation, AIDWA (All India Democratic Women’s Association), and individual activists^[61]. These petitions challenged Exception 2 to Section 375, this time focusing on adult wives^[62]. The question was whether the marital rape exception violates constitutional rights^[63].

What the judges held: The bench consisted of two judges Justice Rajiv Shakdher and Justice C. Hari Shankar^[64].

• Justice Shakdher held that the exception was unconstitutional^[65]. He argued that it violated Articles 14, 15, 19(1)(a), and 21 by denying married women equality, dignity, and autonomy^[66]. He also said that marriage cannot be a license for sexual violence^[67].
• Justice Hari Shankar, upheld the exception^[68] He reasoned that removing it would destabilise the institution of marriage and that Parliament, not the judiciary, should make such a change^[69].
• Outcome: Because the two judges disagreed, the Delhi High Court delivered a split verdict^[70]. This means no change was made in the law, and the matter was referred to the Supreme Court, where it is still pending^[71]. For now, marital rape of adult wives remains outside the scope of criminal law in India^[72].

Other Statutory and Legislative Developments

For minors: Laws like POCSO and the Prohibition of Child Marriage Act provide protection to girls under 18^[73]. So  marital rape involving minors can be prosecuted under these laws, even if IPC’s Exception 2 technically still exists^[74].

For adult wives: Despite debates in Parliament and repeated recommendations from women’s rights groups and the Law Commission, there has been no amendment to explicitly criminalise marital rape^[75].

New Criminal Codes:  Even with the introduction of the Bharatiya Nyaya Sanhita (BNS) in 2023 to replace the IPC, the marital rape exception was retained^[76]. The new law continues to exclude adult wives from rape protection, meaning the legal position has not changed^[77].

Analytical Issues & Constitutional Tensions

• Consent and Bodily Autonomy

 Consent in sexual relations must always be real, voluntary, and free from pressure^[78]. Being married does not mean a wife has given consent once and for all^[79]. Consent has to exist in every act^[80]. The Constitution, through Article 21 right to life and personal liberty, guarantees bodily autonomy and privacy^[81]. The Supreme Court in Justice K.S. Puttaswamy v. Union of India 2017 recognised privacy as a fundamental right, which extends to decisions about one’s body and sexuality^[82]. Marriage cannot be used as an excuse to override these rights^[83].

• Equality and Non-discrimination

The marital rape exception treats married and unmarried women differently^[84]. If a man forces sex on an unmarried woman, it is rape, but the same act against his wife is not legally recognised^[85]. This violates Article 14 equality before law and Article 15 prohibition of discrimination on grounds of sex^[86]. In Independent Thought v. Union of India 2017, the Supreme Court struck down the exception as applied to child wives between 15 to 18 years, acknowledging that marital status cannot deprive a woman of protection^[87]. This logic extends equally to adult married women^[88].

• Dignity and Human Rights

Sexual assault within marriage violates a woman’s dignity, mental health, and autonomy^[89]. Article 21 protects not only life, but also dignity^[90]. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi 1981, the Court held that the right to life includes living with dignity^[91]. A wife is not the property of her husband, and her personhood continues after marriage^[92]. Constitutional morality requires protecting these rights even in the private sphere of family life^[93].

• Legislative vs Judicial Roles

There is debate over whether the courts should act or whether Parliament must take the lead^[94]. Some judges, like in the Delhi High Court split verdict on marital rape 2022, stressed that such change should come through legislation^[95]. Others argue that when fundamental rights are being violated, courts have a duty to intervene^[96]. As the Supreme Court said in Navtej Singh Johar v. Union of India 2018, constitutional rights cannot be denied simply because the Legislature is reluctant to act^[97].

• Social, Cultural, and Practical Concerns

Critics worry about misuse of the law, false accusations, or damage to the institution of marriage^[98]. However, evidence shows the real issue is underreporting due to stigma, financial dependence, and lack of support^[99]. In fact, the National Family Health Survey (NFHS-5) shows high levels of spousal violence, most of which goes unreported^[100].

 Instead of denying protection, the solution lies in strong procedural safeguards and support mechanisms, ensuring justice while addressing concerns about false complaints^[101].

• Comparative Jurisprudence

Globally, many countries have already abolished the marital rape exception^[102]. The UK in R v. R 1991 declared that a husband can be guilty of raping his wife^[103]. South Africa, Canada, and several others have also criminalised it^[104]. These examples show that recognising marital rape does not weaken marriage instead it strengthens the institution by making it one of respect, equality, and dignity^[105]. India as a constitutional democracy should not lag behind in protecting women’s rights^[106].

Why Criminalisation of Marital Rape Is Necessary

Removing the marital rape exception would mean that no man can hide behind marriage to escape accountability for non-consensual sex, ensuring that all women whether married or unmarried are equally protected under the law as guaranteed by Article 14^[107]. It would act as both a deterrent and a strong social statement that a wife is not bound to give perpetual consent and that her bodily autonomy and privacy under Article 21 remain intact within marriage^[108]. This reform would also align India’s rape laws with the constitutional mandates of equality, dignity, and non-discrimination under Articles 14, 15, and 21 which the Supreme Court has repeatedly upheld in cases like Puttaswamy (privacy)^[109] and Navtej Johar (constitutional morality)^[110]. By recognising marital rape as a crime, the law would address gender-based violence more comprehensively closing a glaring gap in our legal system and complementing existing frameworks like the Domestic Violence Act, 2005 which already recognises spousal cruelty in other forms^[111]. Most importantly, criminalisation would give survivors a much-needed legal remedy and also provide social recognition of the harm they endure countering the stigma that often silences them^[112]. Far from undermining marriage, it would strengthen the institution by building it on respect, equality, and consent rather than coercion bringing India in line with global practices seen in countries like the UK (R v. R, 1991)^[113] and South Africa^[114] while staying true to the spirit of our own Constitution^[115].

Recommendations for Legislative Reform

• Explicit Criminalisation

The most important step is to clearly amend the Indian Penal Code or its new form under the Bharatiya Nyaya Sanhita so that non-consensual sex within marriage is treated as rape without leaving any exceptions^[116]. This would send out a clear message that marriage is not a licence for forced sex and that the law protects all women equally whether married or not^[117].

• Clear Definitions

The law must spell out what exactly is meant by terms like “consent,” “coercion,” or “force^[118].” This avoids confusion, ensures uniform interpretation and makes it easier for survivors to seek justice^[119]. For example, consent should be defined as free, voluntary, and informed agreement not something assumed from marriage or silence^[120]

• Procedural Safeguards

Along with criminalisation there must be safeguards to ensure fairness^[121]. Courts should require strong and credible evidence to establish lack of consent^[122]. Survivors must be protected from harassment during investigation and trial^[123]. At the same time, the process must remain fair to the accused with safeguards against misuse^[124]. This balance ensures that justice is done without weakening either side’s rights^[125].

• Awareness, Training & Sensitisation

Law alone is not enough^[126]. Police officers, judges, doctors, and lawyers must be trained to understand the sensitive nature of marital rape^[127]. They should be able to recognise the psychological trauma survivors face and the power dynamics within marriage that often silence women^[128]. Proper sensitisation can prevent bias, victim-blaming, and hostile treatment in the justice system^[129].

• Harmonisation of Laws

India already has several overlapping laws such as the POCSO Act, the Prohibition of Child Marriage Act, and the IPC^[130]. These must be harmonised so there are no contradictions for example, around the legal age of marriage or how consent is understood^[131]. A consistent legal framework will prevent loopholes and ensure that protections are effective in practice^[132].

• Support and Rehabilitation

Legal changes must be matched with social and medical support for survivors^[133]. This means providing shelters, counselling, legal aid, and opportunities for economic independence^[134]. Survivors of marital rape often face isolation, stigma, and financial dependence, so rehabilitation is just as important as punishment^[135]. Without such support systems, the law would remain only on paper and not bring real change in women’s lives^[136].

Conclusion

Marital rape continues to be a major gap in Indian criminal law because the law still places the institution of marriage above the idea of consent^[137]. This approach goes against the core constitutional values of equality, dignity, autonomy, and privacy, which clearly show that consent cannot be ignored just because two people are married^[138]. Courts have made some progress through cases like Independent Thought v Union of India (2017)^[139] and the Delhi High Court’s split verdict (2022)^[140], but these steps are incomplete and leave the issue unresolved. What is needed is a clear legislative reform that directly recognises marital rape as a crime against adult wives, while also ensuring fair safeguards to prevent misuse^[141]. Such a reform is not just about meeting constitutional and international commitments^[142], it is about upholding basic human rights and recognising that true democracy cannot exist where women’s consent is denied within marriage^[143].

Bibliography

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• Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
• Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608.
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• Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (Dec. 10, 1948).
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^[1]Law Commission of India, Consultation Paper on Marital Rape (2012)  accessed 26 September 2025.

^[2]Constitution of India 1950, arts 14, 15, 21.

^[3]Indian Penal Code 1860, s 375 Exception 2 (as substituted by the Bharatiya Nyaya Sanhita 2023, s 63).

^[4]Independent Thought v Union of India (2017) 10 SCC 800 (SC) [74].

^[5]Delhi Domestic Working Women’s Forum v Union of India (1995) 1 SCC 14 (SC) [15].

^[6]Flavia Agnes, Law, Justice and Gender: Family Law and Constitutional Provisions in India

^[7]Justice Verma Committee, Report of the Committee on Amendments to Criminal Law (2013) 450–52.

^[8]Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW), arts 2, 16.

^[9]UN Women, Progress of the World’s Women 2019–2020: Families in a Changing World (United Nations 2019) 168–70.

^[10]RIT Foundation v Union of India, 2022 SCC OnLine Del 933 (Delhi HC split verdict).

^[11]Justice J S Verma Committee (n 7) 452.

^[12]Madhavi Sunder, ‘Marital Rape and the Right to Privacy’ (2018) 131 Harvard Law Review Forum 150, 155.

^[13]Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins 2019) 239.

^[14]Granville Austin, The Indian Constitution: Cornerstone of a Nation (OUP 1966) 50.

^[15]Flavia Agnes, ‘Conjugality, Property, Morality and Maintenance’ (1999) 14(35) Economic and Political Weekly 3111.

^[16]Indian Penal Code 1860, s 375 Exception 2.

^[17]Independent Thought v Union of India (2017) 10 SCC 800 (SC) (holding marital exception unconstitutional only for minor wives).

^[18]Jaya Sagade, Child Marriage in India: Socio-Legal and Human Rights Dimensions (OUP 2005) 174.

^[19]CEDAW Committee, ‘General Recommendation No 35 on Gender-Based Violence against Women’ (2017) UN Doc CEDAW/C/GC/35, para 29.

^[20]Constitution of India 1950, arts 14, 15, 21; Justice KS Puttaswamy v Union of India (2017) 10 SCC 1 (SC) (recognising dignity and privacy as part of Article 21).

^[21]Indian Penal Code 1860, s 375 Exception 2; Constitution of India 1950, arts 14, 15, 21; Justice KS Puttaswamy v Union of India (2017) 10 SCC 1 (SC).

^[22]Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (OUP 1999) 156.

^[23]Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW); CEDAW Committee, ‘General Recommendation No 35 on Gender-Based Violence against Women’ (2017) UN Doc CEDAW/C/GC/35.

^[24]Granville Austin, Working a Democratic Constitution: The Indian Experience (OUP 1999) 75; Navtej Singh Johar v Union of India (2018) 10 SCC 1 (SC).

^[25]Law Commission of India, Consultation Paper on Reform of Family Law (2018) para 8.5.4; Justice Verma Committee Report (2013) 113–115.

^[26]Indian Penal Code 1860, s 375.

^[27]ibid, Exception 2.

^[28]Jaya Sagade, Child Marriage in India: Socio-Legal and Human Rights Dimensions (OUP 2005) 174.

^[29]Flavia Agnes, ‘Conjugality, Property, Morality and Maintenance’ (1999) 14(35) Economic and Political Weekly 3111, 3114.

^[30]Independent Thought v Union of India (2017) 10 SCC 800 (SC).

^[31]ibid [191]–[193].

^[32]Ibid.

^[33]Indian Penal Code 1860, s 375 Exception 2 (still applicable to wives above 18).

^[34]Law Commission of India, Consultation Paper on Reform of Family Law (2018) para 8.5.4; Justice Verma Committee Report (2013) 113–115.

^[35]Constitution of India 1950, Part III (Fundamental Rights).

^[36]Ibid art 14.

^[37]Indian Penal Code 1860, s 375 Exception 2.

^[38]Independent Thought v Union of India (2017) 10 SCC 800 (SC).

^[39] Gautam Bhatia, The Transformative Constitution (HarperCollins 2019) 102.

^[40]Constitution of India 1950, art 15(1).

^[41]Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (OUP 1999) 156.

^[42]Constitution of India 1950, art 21.

^[43]CEDAW Committee, ‘General Recommendation No 35 on Gender-Based Violence against Women’ (2017) UN Doc CEDAW/C/GC/35, para 29.

^[44]Justice KS Puttaswamy v Union of India (2017) 10 SCC 1 (SC).

^[45]ibid [298]–[301].

^[46]Law Commission of India, Consultation Paper on Reform of Family Law (2018) para 8.5.4.

^[47]Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW).

^[48]Ministry of External Affairs (India), ‘Report of India on CEDAW Implementation’ (1993).

^[49]CEDAW, arts 1–2; CEDAW Committee, ‘General Recommendation No 19 on Violence against Women’ (1992) UN Doc A/47/38, para 23.

^[50]CEDAW Committee, ‘General Recommendation No 35 on Gender-Based Violence against Women’ (2017) UN Doc CEDAW/C/GC/35, para 29.

^[51]Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)), arts 1, 3, 5, 7; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, arts 2, 7, 17.

^[52]UN Human Rights Committee, General Comment No 28: Equality of Rights between Men and Women (2000) UN Doc CCPR/C/21/Rev.1/Add.10, para 20.

^[53]Rashida Manjoo, ‘Report of the Special Rapporteur on Violence against Women, its Causes and Consequences’ (2012) UN Doc A/HRC/20/16, para 33.

^[54]Justice Verma Committee Report (2013) 113–115.

^[55]Independent Thought v Union of India (2017) 10 SCC 800 (SC).

^[56]Indian Penal Code 1860, s 375 Exception 2; Protection of Children from Sexual Offences Act 2012, s 2(d).

^[57]Independent Thought v Union of India (2017) 10 SCC 800 (SC) [191]–[193].

^[58]ibid; POCSO Act 2012, s 5(n).

^[59] Jaya Sagade, Child Marriage in India: Socio-Legal and Human Rights Dimensions (OUP 2005) 183.

^[60]Indian Penal Code 1860, s 375 Exception 2 (still applicable for wives above 18).

^[61] RIT Foundation v Union of India (2022) Delhi HC Writ Petition (Civil) No 284/2015; see also AIDWA v Union of India (tagged petition).

^[62]Supra, 37.

^[63]ibid; Constitution of India 1950, arts 14, 15, 19(1)(a), 21.

^[64]RIT Foundation v Union of India (2022) Delhi HC Writ Petition (Civil) No 284/2015 (per Shakdher J and Hari Shankar J).

^[65]ibid (per Shakdher J).

^[66]Constitution of India 1950, arts 14, 15, 19(1)(a), 21.

^[67]RIT Foundation v Union of India (2022) (per Shakdher J).

^[68]ibid (per Hari Shankar J).

^[69]ibid (split verdict).

^[70]ibid (split verdict).

^[71]PTI, ‘Supreme Court to Hear Pleas on Marital Rape Exception after Split Delhi HC Verdict’ The Hindu (11 May 2022).

^[72]Indian Penal Code 1860, s 375 Exception 2 (still in force for wives above 18).

^[73]Protection of Children from Sexual Offences Act 2012, ss 2(d), 3–6; Prohibition of Child Marriage Act 2006, s 9.

^[74]Indian Penal Code 1860, s 375 Exception 2; Independent Thought v Union of India (2017) 10 SCC 800 (SC).

^[75]Law Commission of India, Consultation Paper on Reform of Family Law (2018) para 8.5.4; Justice Verma Committee Report (2013) 113–115.

^[76]Bharatiya Nyaya Sanhita 2023, s 63 Exception 2.

^[77]ibid; Indian Express, ‘Marital Rape Exception Retained in New Criminal Law Codes’ (29 December 2023).

^[78]Shakti Vahini v Union of India (2018) 7 SCC 192 (SC) [47] (on autonomy and voluntary choice in intimate relations).

^[79]Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (OUP 1999) 156.

^[80]CEDAW Committee, ‘General Recommendation No 35 on Gender-Based Violence against Women’ (2017) UN Doc CEDAW/C/GC/35, para 29.

^[81]Constitution of India 1950, art 21.

^[82]Justice KS Puttaswamy v Union of India (2017) 10 SCC 1 (SC) [298]–[301].

^[83]Gautam Bhatia, The Transformative Constitution (HarperCollins 2019) 108.

^[84]Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (OUP 1999) 156.

^[85]Supra, 37.

^[86]Constitution of India 1950, arts 14, 15.

^[87]Independent Thought v Union of India (2017) 10 SCC 800 (SC) [191]–[193].

^[88]Gautam Bhatia, The Transformative Constitution (HarperCollins 2019) 102–103.

^[89]CEDAW Committee, ‘General Recommendation No 35 on Gender-Based Violence against Women’ (2017) UN Doc CEDAW/C/GC/35, para 29.

^[90]Constitution of India 1950, art 21.

^[91]Francis Coralie Mullin v Administrator, Union Territory of Delhi (1981) 1 SCC 608 (SC) [9]–[10].

^[92] Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (OUP 1999) 156–157.

^[93]Gautam Bhatia, The Transformative Constitution (HarperCollins 2019) 105.

^[94]Gautam Bhatia, The Transformative Constitution (HarperCollins 2019) 108–109.

^[95]RIT Foundation v Union of India (2022) Delhi HC Writ Petition (Civil) No 284/2015 (per Shakdher J and Hari Shankar J).

^[96] Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (OUP 1999) 156.

^[97]Navtej Singh Johar v Union of India (2018) 10 SCC 1 (SC) [104]–[105].

^[98]Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (OUP 1999) 156.

^[99]Indira Jaising, ‘The Marital Rape Debate: Legal, Social and Constitutional Dimensions’ (2017) 9 NLU Delhi Law Review 23, 28–29.

^[100]International Institute for Population Sciences (IIPS) and Ministry of Health and Family Welfare, National Family Health Survey (NFHS-5), India 2019–21 (Mumbai: IIPS 2021) 452–454.

^[101]Law Commission of India, Consultation Paper on Reform of Family Law (2018) para 8.5.4; Justice Verma Committee Report (2013) 113–115.

^[102]Rashida Manjoo, ‘Report of the Special Rapporteur on Violence against Women, its Causes and Consequences’ (2012) UN Doc A/HRC/20/16, para 33.

^[103]R v R [1991] 4 ALL ER 481 (HL).

^[104]Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (South Africa); Criminal Code, RSC 1985, c C-46, s 273.1 (Canada); see also Jane Freedman, Violence Against Women in Contemporary World Politics (Routledge 2013) 97–98.

^[105]Freedman (n 3) 97–98.

^[106]Constitution of India 1950, arts 14, 15, 21.

^[107]Constitution of India 1950, art 14.

^[108]Constitution of India 1950, art 21; Justice KS Puttaswamy v Union of India (2017) 10 SCC 1 (SC) [298]–[301].

^[109]Ibid

^[110]Navtej Singh Johar v Union of India (2018) 10 SCC 1 (SC) [104]–[105].

^[111]Protection of Women from Domestic Violence Act 2005, ss 3–4; Law Commission of India, Consultation Paper on Reform of Family Law (2018) para 8.5.4.

^[112]Rashida Manjoo, ‘Report of the Special Rapporteur on Violence against Women’ (2012) UN Doc A/HRC/20/16, para 33.

^[113]R v R [1991] 4 ALL ER 481 (HL).

^[114]Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (South Africa).

^[115]Constitution of India 1950, arts 14, 15, 21.

^[116]Indian Penal Code 1860, s 375; Bharatiya Nyaya Sanhita 2023, s 63 Exception 2 (current law still retains marital rape exception).

^[117]Constitution of India 1950, arts 14, 15, 21; Law Commission of India, Consultation Paper on Reform of Family Law (2018) para 8.5.4; Justice Verma Committee Report (2013) 113–115.

^[118]Law Commission of India, Consultation Paper on Reform of Family Law (2018) para 8.5.4; Justice Verma Committee Report (2013) 113–115.

^[119]Rashida Manjoo, ‘Report of the Special Rapporteur on Violence against Women, its Causes and Consequences’ (2012) UN Doc A/HRC/20/16, para 33.

^[120]CEDAW Committee, ‘General Recommendation No 35 on Gender-Based Violence against Women’ (2017) UN Doc CEDAW/C/GC/35, para 29; Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (OUP 1999) 156.

^[121]Law Commission of India, Consultation Paper on Reform of Family Law (2018) para 8.5.4.

^[122]Justice Verma Committee Report (2013) 113–115, paras 4.5–4.6.

^[123]ibid; Rashida Manjoo, ‘Report of the Special Rapporteur on Violence against Women, its Causes and Consequences’ (2012) UN Doc A/HRC/20/16, para 33.

^[124]ibid; Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (OUP 1999) 156–157.

^[125]Law Commission of India, Report No 262: Need for Reform in Criminal Justice Procedures for Sexual Offences (2009) paras 3.1–3.5.

^[126]Justice Verma Committee Report (2013) 113–115, paras 4.5–4.6 (on training of legal and enforcement personnel).

^[127]UN Office on Drugs and Crime, Handbook on Effective Prosecution Responses to Violence Against Women (2014) 25–30.

^[128]Rashida Manjoo, ‘Report of the Special Rapporteur on Violence against Women, its Causes and Consequences’ (2012) UN Doc A/HRC/20/16, paras 32–33.

^[129]Law Commission of India, Consultation Paper on Reform of Family Law (2018) para 8.5.4; Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (OUP 1999) 156–157.

^[130]Indian Penal Code 1860, s 375; Protection of Children from Sexual Offences Act 2012, ss 2–6; Prohibition of Child Marriage Act 2006, s 9.

^[131]Law Commission of India, Consultation Paper on Reform of Family Law (2018) para 8.5.4; Justice Verma Committee Report (2013) 113–115.

^[132]Rashida Manjoo, ‘Report of the Special Rapporteur on Violence against Women, its Causes and Consequences’ (2012) UN Doc A/HRC/20/16, para 33.

^[133]ibid; Ministry of Women and Child Development, Scheme for Support to Victims/Survivors of Sexual Assault (2020).

^[134]ibid; Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (OUP 1999) 156–157.

^[135]UN Women, Handbook for Legislation on Violence Against Women (2012) 41–45.

^[136]Rashida Manjoo (n 3) para 33; Law Commission of India, Consultation Paper on Reform of Family Law (2018) para 8.5.4.

^[137] Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (OUP 1999) 156.

^[138]Constitution of India 1950, arts 14, 15, 21; Gautam Bhatia, The Transformative Constitution (HarperCollins 2019) 102–108.

^[139]Independent Thought v Union of India (2017) 10 SCC 800 (SC) [191]–[193].

^[140]RIT Foundation v Union of India (2022) Delhi HC Writ Petition (Civil) No 284/2015 (per Shakdher J and Hari Shankar J).

^[141]Law Commission of India, Consultation Paper on Reform of Family Law (2018) para 8.5.4; Justice Verma Committee Report (2013) 113–115.

^[142] Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW); Rashida Manjoo, ‘Report of the Special Rapporteur on Violence against Women’ (2012) UN Doc A/HRC/20/16, para 33.