Authored By: Maria Fejzulla
Salford University
Marriage has long occupied a privileged position within Indian society, often viewed as a social institution deserving of legal protection and cultural reverence. Yet the law’s treatment of sexual violence within marriage reveals a troubling contradiction between constitutional values and criminal justice policy. Exception 2 to Section 375 of the Indian Penal Code, historically preserved in Indian criminal law, effectively excludes non-consensual sexual intercourse by a husband with his wife from the definition of rape.[1] This exception is rooted in the archaic common law doctrine articulated by Sir Matthew Hale, who argued that marriage constituted irrevocable consent to sexual relations.[2] Although this doctrine emerged in a historical context where women lacked independent legal identity, its influence continues to shape contemporary law. The persistence of the marital rape exception raises a fundamental human rights question: can a democratic constitutional order committed to equality, dignity, and liberty continue to deny married women the same protection against sexual violence afforded to all other individuals? This article argues that it cannot. The exception is constitutionally indefensible, morally untenable, and increasingly inconsistent with both domestic and international human rights standards.[3]
The most significant weakness of the marital rape exception lies in its incompatibility with constitutional guarantees of equality. Article 14 of the Constitution requires that legal classifications possess a rational nexus with a legitimate objective.[4] However, the distinction between married and unmarried victims of rape is based solely on marital status rather than the nature of the harm suffered. The physical violation, psychological trauma, and deprivation of autonomy resulting from non-consensual sexual intercourse remain identical irrespective of whether the perpetrator is a stranger or a spouse. The law nevertheless grants protection to one category of victims while denying it to another. Such differential treatment appears arbitrary and discriminatory. More importantly, it reinforces the patriarchal assumption that marriage transforms a woman’s legal relationship with her own body. In doing so, the exception does not merely fail to protect women; it actively constructs a hierarchy of victimhood in which married women receive diminished recognition as rights-bearing individuals. A constitutional democracy committed to substantive equality cannot justify such a distinction merely based on tradition or social custom.[5]
The exception is equally inconsistent with the constitutional values of dignity, privacy, and bodily autonomy that have emerged as central pillars of Indian jurisprudence. In Justice K.S. Puttaswamy v Union of India, the Supreme Court recognised privacy as an intrinsic component of personal liberty and emphasised the importance of decisional autonomy in intimate matters.[6] Similarly, in Joseph Shine v. Union of India, the Court rejected legal doctrines premised upon the subordination of women within marriage and affirmed that spouses retain individual dignity and constitutional personhood.[7] These judgments collectively challenge the assumption that marriage extinguishes personal autonomy. If an individual possesses the right to make intimate decisions concerning their body and relationships, it follows that consent must remain legally relevant within marriage. The marital rape exception creates a contradiction at the heart of constitutional doctrine: the law recognises autonomy in principle while denying its practical application in one of the most intimate contexts imaginable. Such inconsistency weakens the credibility of constitutional protections and undermines the transformative vision of rights embraced by the Supreme Court.[8]
From a human rights perspective, the failure to criminalise marital rape reflects a broader tendency to treat violence occurring within the private sphere as less serious than violence occurring in public. Historically, legal systems have often viewed the family as an autonomous domain insulated from state intervention. While respect for family privacy serves important purposes, it cannot justify immunity for conduct that would otherwise constitute a serious criminal offence. Human rights law is founded on the principle that all individuals possess inherent dignity and equal protection from violence.[9] When the law refuses to recognise marital rape, it effectively communicates that a woman’s bodily integrity becomes conditional upon her marital status. Such a message is incompatible with modern understandings of gender equality and personal freedom. Moreover, the exemption perpetuates harmful social norms by normalising coercive sexual behaviour within marriage and discouraging victims from seeking legal recourse. The law is not merely a reflection of social values; it is also a powerful instrument that shapes those values. Retaining the exception, therefore, risks legitimising precisely the conduct that human rights law seeks to eradicate.[10]
India’s international obligations further strengthen the case for reform. As a party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), India has committed itself to eliminating discrimination and ensuring effective protection against gender-based violence.[11] The CEDAW Committee has repeatedly emphasised that violence against women constitutes a form of discrimination that impairs the enjoyment of fundamental rights and freedoms.[12] International human rights bodies have consistently criticised marital rape exemptions because they deny women equal protection under the law and reinforce structural inequality.[13] Although international treaties do not automatically override domestic legislation, Indian courts have frequently relied upon international norms when interpreting constitutional rights, particularly where domestic law is ambiguous or incomplete.[14] The continued existence of the marital rape exception, therefore, places India in an increasingly difficult position internationally. While the country has embraced global commitments to gender equality, its criminal law continues to preserve a doctrine that many jurisdictions abandoned decades ago. This inconsistency raises questions about the sincerity and effectiveness of India’s commitment to protecting human rights.
Opponents of criminalisation often contend that recognising marital rape as an offence could destabilise marriages, encourage false complaints, or lead to misuse of criminal law. These concerns warrant consideration but ultimately fail to justify the complete denial of legal protection. Similar arguments have historically been advanced against laws addressing domestic violence, workplace harassment, and dowry-related abuse.[15] Yet the possibility of misuse has never been regarded as a sufficient basis for withholding legal recognition from genuine victims. Every criminal offence carries the risk of false allegations, but the legal system addresses that risk through evidentiary standards, procedural safeguards, and judicial scrutiny. More fundamentally, the misuse argument shifts attention away from the central constitutional question: whether marriage should operate as a legal defence to non-consensual sexual intercourse. If consent is the defining element distinguishing lawful sexual activity from rape, its relevance cannot logically disappear upon marriage. To suggest otherwise is to create a legal fiction that prioritises institutional preservation over individual rights. Human rights protections are most necessary when social institutions exert pressure on individual autonomy, not when they conveniently align with it.[16]
In Conclusion, the debate surrounding marital rape is not merely a dispute about criminal law; it is a test of the extent to which constitutional and human rights principles are willing to challenge entrenched social hierarchies. The marital rape exception rests upon a historical conception of marriage that treated wives as subordinate to their husbands and presumed perpetual consent to sexual relations. Such assumptions are fundamentally incompatible with contemporary understandings of equality, dignity, privacy, and bodily autonomy. Constitutional jurisprudence increasingly recognises women as independent rights-bearing individuals, while international human rights law demands equal protection from all forms of gender-based violence. Retaining the marital rape exception creates a profound contradiction between these commitments and the realities of criminal law. Criminalisation alone cannot eliminate sexual violence within marriage, but it would affirm a critical legal principle: marriage is a partnership of equals, not a source of immunity from accountability. A legal system genuinely committed to human rights must recognise that consent remains essential in every sexual relationship, including those sanctioned by marriage.[17]
Table of Cases
Independent Thought v Union of India (2017) 10 SCC 800.
Joseph Shine v Union of India (2019) 3 SCC 39.
Justice K.S. Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1.
Navtej Singh Johar v Union of India (2018) 10 SCC 1.
Rajesh Sharma v State of Uttar Pradesh (2017) 8 SCC 821.
R v R [1992] 1 AC 599 (HL).
Vishaka v State of Rajasthan (1997) 6 SCC 241.
Table of Legislation
Constitution of India 1950.
Indian Penal Code 1860.
International Instruments
Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13.
United Nations Declaration on the Elimination of Violence against Women, UNGA Res 48/104 (20 December 1993).
Universal Declaration of Human Rights, UNGA Res 217A (III) (10 December 1948).
Bibliography:
Books
Hale M, Historia Placitorum Coronae: The History of the Pleas of the Crown (1st edn, E and R Nutt and R Gosling 1736).
Journal Articles
Agnes F, ‘Protecting Women against Violence? Review of a Decade of Legislation, 1980–89’ (1992) 27(17) Economic and Political Weekly WS19.
Bhatia G, ‘The Marital Rape Exception and Constitutional Equality’ (2022) 57(41) Economic and Political Weekly 12.
Dhanda A and Parashar A, ‘Engendering Law: Essays in Honour of Lotika Sarkar’ (Eastern Book Company 1999).
Patel V, ‘Marital Rape and Women’s Right to Bodily Integrity in India’ (2021) 13 NUJS Law Review 1.
Reports and Other Materials
CEDAW Committee, General Recommendation No 35 on Gender-Based Violence against Women, Updating General Recommendation No 19 (2017) UN Doc CEDAW/C/GC/35.
United Nations Human Rights Committee, General Comment No 28: Equality of Rights Between Men and Women (2000) UN Doc CCPR/C/21/Rev.1/Add.10.
UN Women, Progress of the World’s Women: Families in a Changing World (2019).
Law Commission of India, 172nd Report on Review of Rape Laws (2000).
[1] Indian Penal Code, 1860, s 375 Exception 2.
[2] Sir Matthew Hale, Historia Placitorum Coronae (1736).
[3] Constitution of India arts 14 and 21.
[4] Constitution of India art 14.
[5] Independent Thought v Union of India (2017) 10 SCC 800.
[6] Justice K.S. Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1.
[7] Joseph Shine v Union of India (2019) 3 SCC 39.
[8] Navtej Singh Johar v Union of India (2018) 10 SCC 1.
[9] Universal Declaration of Human Rights 1948 arts 1, 3 and 5.
[10] United Nations Declaration on the Elimination of Violence against Women 1993.
[11] Convention on the Elimination of All Forms of Discrimination against Women 1979.
[12] CEDAW Committee, General Recommendation No 35 (2017).
[13] United Nations Human Rights Committee, General Comment No 28 (2000).
[14] Vishaka v State of Rajasthan (1997) 6 SCC 241.
[15] Rajesh Sharma v State of Uttar Pradesh (2017) 8 SCC 821.
[16] Joseph Shine v Union of India (2019) 3 SCC 39.
[17] Justice K.S. Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1.
