Authored By: Mitali Jethani
Middlesex University Dubai
Introduction
Marital rape, defined as non-consensual sexual intercourse by a husband with his wife, remains a legally unrecognized offence under Indian criminal law. Section 375 of the Indian Penal Code (IPC), which defines rape, explicitly carves out an exception: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” This exception reflects a deeply patriarchal assumption rooted in colonial legal legacy — that marriage constitutes irrevocable consent.
Despite growing constitutional scrutiny and societal awareness, Indian jurisprudence remains entangled in the question of whether a man can be prosecuted for raping his wife. This article critically analyzes the evolving legal landscape surrounding marital rape, examining constitutional interpretations, comparative jurisprudence, and the clash between personal liberty and patriarchal privilege.
Colonial Legacy and the Marital Rape Exception
The marital rape exception is a relic of 19th-century Victorian morality, introduced during British colonial rule. The doctrine of coverture—that a wife’s legal personality merges with her husband’s—provided the conceptual basis for this exemption. Sir Matthew Hale’s pronouncement in 1736 that “the husband cannot be guilty of a rape committed by himself upon his lawful wife” has continued to shape Indian criminal law post-independence.
The Supreme Court in State of Maharashtra v. Madhukar Narayan Mardikar (1991) held that every woman, including a prostitute, is entitled to sexual autonomy and bodily integrity. Ironically, this principle is yet to be extended to married women. This creates an arbitrary classification that immunizes a specific category of offenders — husbands — from prosecution.
Judicial Silence and Fragmented Developments
Indian courts have historically sidestepped the core issue of constitutional invalidity of the marital rape exception. However, a few important judgments have begun to challenge this silence.
In Independent Thought v. Union of India (2017), the Supreme Court read down Exception 2 to Section 375 IPC, raising the age of consent within marriage from 15 to 18 years. Though limited to child marriage, the ruling opened the door for constitutional examination of marital rape. Justice Madan Lokur’s observation that a minor’s consent is irrelevant regardless of marital status emphasized bodily autonomy over marital status.
Yet, the Court deliberately confined its reasoning to underage marriages, leaving the larger constitutional question untouched. The avoidance reflects judicial conservatism, possibly to defer to legislative prerogative.
The Delhi High Court Split Verdict: RIT Foundation v. Union of India (2022)
Perhaps the most significant development in recent years is the split verdict delivered by the Delhi High Court in RIT Foundation v. Union of India. Petitioners challenged the constitutional validity of Exception 2 to Section 375 IPC on grounds of Articles 14, 15, 19(1)(a), and 21.
Justice Rajiv Shakdher held the exception unconstitutional, stating it violates the right to bodily integrity and dignity of married women. His judgment emphasized that marriage cannot be a license for sexual violence and that the exception creates an arbitrary classification lacking a rational nexus with the objective of the law.
Conversely, Justice C. Hari Shankar upheld the exception, arguing that the legislature consciously excluded marital rape from criminalization and that judicial interference would breach the separation of powers.
This deadlock reflects the core constitutional dilemma: Can the judiciary invalidate a legislative provision rooted in social custom, or must it defer to Parliament’s intent?
Constitutional Grounds for Invalidation
An analytical application of constitutional doctrine reveals the fragility of the marital rape exception:
- Article 14 (Right to Equality): The exception treats married and unmarried women differently for no intelligible reason. It creates a class of “unrapeable” women — married ones — undermining the very essence of equal protection.
- Article 21 (Right to Life and Personal Liberty): The marital rape exception directly violates a woman’s right to bodily autonomy, dignity, and sexual integrity. The Supreme Court in Justice K.S. Puttaswamy v. Union of India (2017) recognized decisional autonomy and privacy as integral to Article 21, a principle inconsistent with forced conjugal relations.
- Article 19(1)(a): Insofar as it relates to a woman’s freedom of expression and decisional autonomy in refusing sex, the exception suppresses her agency and voice within the marriage.
- Article 15(1): The exception discriminates solely on the ground of marital status, a constitutionally impermissible ground under Article 15.
Legislative Apathy and the Political Question Doctrine
Despite judicial developments, legislative inertia persists. Successive governments have either avoided the issue or expressed reluctance to criminalize marital rape, citing potential misuse, disruption of family harmony, and socio-cultural complexities.
The Justice Verma Committee (2013), formed in the aftermath of the Nirbhaya case, unequivocally recommended the deletion of the marital rape exception, emphasizing that sexual violence within marriage is as grave as any other. Parliament ignored this recommendation, reflecting a disconnect between progressive legal thought and legislative will.
Arguments of misuse echo those raised against every gender justice reform — be it dowry laws, sexual harassment, or domestic violence — and betray a patriarchal anxiety rather than a genuine concern for justice.
Comparative Jurisprudence: India as an Outlier
Globally, over 100 countries have criminalized marital rape either explicitly or by removing exemptions. The UK abolished the common law marital rape immunity in R v. R (1991), holding that a husband could be guilty of raping his wife. South Africa, Nepal, and Bhutan have similarly recognized marital rape as an offence.
India’s continued endorsement of the exception places it in the company of a few countries that prioritize patriarchal values over human rights. In the international legal arena, instruments like the CEDAW and ICCPR implicitly require states to criminalize all forms of violence against women, including within marriage — obligations India has ratified.
Way Forward: Judicial Courage or Legislative Reform?
The evolving jurisprudence indicates growing judicial discomfort with the marital rape exception. However, its removal requires either:
- Judicial Declaration of Unconstitutionality under Articles 13 and 32/226, or
- Parliamentary Amendment to Section 375 IPC to eliminate the exception.
Both avenues are fraught with institutional risks. Judicial invalidation may attract backlash under the separation of powers doctrine, while legislative change demands political will that seems lacking.
One possible middle path is a graded offence model, distinguishing aggravated sexual violence from lesser offences within marriage — balancing deterrence with sensitivity to marital contexts.
Conclusion
The constitutional logic against the marital rape exception is overwhelming. The exception is incompatible with the principles of bodily autonomy, equality, and dignity — values enshrined in the Constitution and reiterated by progressive judicial decisions.
Yet, legal change is impeded by the weight of cultural inertia and legislative inaction. The time has come to recognize that marriage does not imply perpetual consent. Until the law reflects this truth, Indian jurisprudence will remain incomplete in its promise to safeguard the fundamental rights of all women — married or not.
Reference(S):
Cases
Independent Thought v Union of India (2017) 10 SCC 800
Justice K.S. Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1
R v R [1991] 1 AC 599 (HL)
RIT Foundation v Union of India 2022 SCC OnLine Del 1407
State of Maharashtra v Madhukar Narayan Mardikar (1991) 1 SCC 57
Legislation
Constitution of India 1950
Indian Penal Code 1860
International Covenant on Civil and Political Rights 1966
Convention on the Elimination of All Forms of Discrimination Against Women 1979
Reports
Justice Verma Committee, Report of the Committee on Amendments to Criminal Law (Government of India, 2013)
