Sexual violence is prevalent and presents itself in various ways in all institutions of life, including the most fundamental unit of human society, the family. The judgements given by the Indian courts in the past few years have pointed towards the adoption of a more liberal and open attitude, reflective of the changing views of Indian society. However, the existence of the marital rape exception in the Indian Penal Code remains a pressing matter. Although several nations have criminalized marital rape, India is one of 36 countries where it is still not recognized as an offence.

‘Rape’ is defined under Section 375 of the Indian Penal Code as "forced sexual intercourse with a woman against her will or without her permission." However, exception 2 to Section 375 provides that non -consensual sexual acts by a man with his wife do not constitute rape if the wife is above the age of 15. As a result, forceful sexual intercourse, if it happens within the institution of marriage, would not be deemed rape. As a result, a woman's marital status becomes a defence against rape committed by her husband.


Four arguments are made in opposition to the criminalization of marital rape. First, there is an ancient belief in Indian society that upon marriage, a woman gives implicit and irrevocable consent to engage in sexual intercourse whenever the husband desires. This concept stems from the antiquated notion that a woman is her husband's property. Further, a woman is expected to fulfill sexual obligations in a marriage because the goal of marriage is procreation, according to Hindu law. Thus, the ordinarily sacrosanct right to consent is somewhat diluted inside a marriage by the "right to expect reasonable sexual relations," and ‘marital rape’ may therefore be treated differently than ‘rape’.

Second, the criminalization of marital rape would disrupt the institution of marriage. Marriages in India are considered a sacrament, tying two people together for seven lives. Therefore, as marriages in India are a divinely established union, the rights and duties of spouses in marital life should be beyond the purview of criminal law. This sacramental and religious character of marriages in India has been incorporated into legislation through the codification of personal laws. This component protects men's sexual rights within the marriage. For example, a Hindu man can use Section 9 of the Hindu Marriage Act to claim restitution of conjugal rights and thus assert his religious "entitlement" to sexual relations in court.

Third, the criminalization of marital rape would result in vengeful women making false allegations against their husbands. This justification may seem practical, but just because a law brings with it the possibility of misuse is no reason not to enforce that law in the first place. Also, gathering evidence in such cases can be pretty challenging, especially when the victim shows no visible traces of assault. So, even if the law recognizes marital rape, the burden is significantly heavier on the wife to establish that the alleged sexual act occurred without her consent than on the husband to prove the reverse. After all, even if the law says otherwise, the culturally pervasive assumption that the expectation of sex can be inferred in marriage does not disappear from the administration of the law. Moreover, it is not always easy for victims of marital rape to approach the judicial system. Even if they battle societal pressure and want to make a complaint, they are still unable to access the legal system due to their class or caste status and rural location.

Fourth, the existing legislations provide enough remedies against sexual violence within a marriage. Many family courts have regarded forced sexual intercourse in a marriage as ‘cruelty’, which is a ground for dissolution of marriage. Under the Protection of Women Against Domestic Violence Act 2005, aggrieved wives and even live-in partners can claim civil remedies on the grounds of sexual violence, such as maintenance or dispossession from home. Further, under section 498A of the Indian Penal Code, a woman can file a complaint for sexual assault. However, the point to be noted here is that all these legislations require that the sexual violence complained of should persist over a long time and a single act cannot be punished. Thus, it is crucial to include marital rape within the purview of Rape laws, where even a single act of forced sexual intercourse can be punished.

The Indian constitution guarantees that any law which violates the fundamental rights of any class of persons shall be void. The marital rape exception violates a woman’s right to privacy and sexual autonomy under Articles 19 and 21. The court has settled in Justice K S Puttuswamy v. Union of India[1]  that the right to life under Article 21 is not restricted to mere “animal existence” but also includes the right to live with dignity and also that the right to make sexual decisions is envisaged in the right to privacy. Thus, the marital rape exception is unconstitutional as it infringes the right to privacy, which includes the sexual agency of the wife, and must be removed from the Indian Penal Code.

Further, the exception is also violative of Article 14 as it differentiates between rape victims based on their marital status and age, which bears no rational nexus to the object of decriminalizing non-consensual sex. The relationship of the accused with the victim of rape holds no weight under the main provision and this neutrality must be maintained by striking down the marital rape exception.


In the recent years there have been some efforts to make the criminalization of marital rape a reality. The Justice Verma Committee Report in 2013 acknowledged that the marital rape exemption is based on the common law doctrine of coverture, which is underpinned by the antediluvian notion that when a woman gets married, she provides tacit and irrevocable consent to have sexual intercourse at the whim of the husband. Referring to international authorities on marital rape, the committee proposed that the marital rape exception be removed from the IPC and also suggested that the law should specify that:

  • The relationship between the perpetrator or victim, even if it is a marital relationship is not a valid defence against rape or sexual crimes and must also not be seen as a mitigating factor
  • The relationship between the accused and the complainant should not have any relevance with regards to the inquiry into whether the complainant consented to the sexual activity.

The committee further observed that changes in the legislation must be supported by extensive efforts to raise understanding of women's rights to autonomy and bodily integrity, regardless of marriage or other personal connection, and there must be a shift in the attitudes of prosecutors, police officers, and others in the society.

The Committee's reasoning for such recommendations was based on the understanding that the sexual agency of a person does not vanish by him/her entering into the institution of marriage. Sex is a personal decision and cannot be viewed as an institutional entitlement. As a result, any male who violates the concept of consent, which is based on sexual autonomy, must be adjudged as guilty.

Recently, the issue of marital rape came up before the Delhi High court where a two-judge bench gave a split verdict. Justice Rajiv Shakdher ruled that criminal law is act or omission centred and, in most cases, is not concerned with the identity of the person who has committed the offence, or his/her relationship with the victim of the crime. Therefore, as the marital rape exception attempts to protect the perpetrator based on his marital relationship with the accused, it is also violative of article 14 of the constitution and must be struck down. He pointed out that overturning the marital rape exception would not result in the formation of a new offence as there has been no change in the ingredients of the offence. The offence of ‘Rape’ is already defined in the substantive portion of section 375 of the IPC, and the sexual actions stated in Clauses (a) to (d) constitute rape if they fall within any of the seven circumstances mentioned in the provision. Therefore, removing exception would simply broaden the scope of section 375 to include even the offending husbands. He observed that reading down, filling gaps, or removing elements of an unconstitutional provision in a legislation is a valid judicial procedure used by courts to separate what is unlawful and retain what is lawful.

However, Justice Harisankar held that Exception 2 to Section 375 does not infringe a person’s fundamental rights under the Constitution, and is founded on an intelligible differentia.  He also ruled that striking it down would result in the formation of an offence. He reasoned  that Judges sitting in courts cannot, regardless of how powerful the counsel's arguments are, invent crimes or deliver judgments that would result in an act that would otherwise not be an offence being made an offence as this does not fall in the domain of the judiciary but the legislature.

Both the judges granted a certificate for appeal in Supreme court holding that substantial questions of law were involved in this issue. Now, it is upto the supreme court to decide the fate of all married women in the country facing sexual exploitation at the hands of their husbands just because the marital rape exception grants them immunity. 
It is the need of the hour to recognize that a rape is a rape, and no amount of categorization or ‘legal jugglery’ can change that. The Marital Rape Exception is the most visible illustration of how the law maintains wives' sexual subordination inside marriage. Marital rape must be viewed through the lens of oppression within the marital household, as well as the religious and societal constraints placed on a woman's autonomy when she marries. The exception thus reinforces gender roles in marriage, including the woman's obligation to provide sex, the husband's right to demand it, and the insignificance of her consent and desire. According to this perspective, the exception represents invidious gender discrimination with severe societal harm, which the judiciary must recognize.

[1] (2017) 10 SCC 1.

About the Author: This post is prepared by Sonali Singh Rathore, Law Student from NALSAR University of Law. She can be reached at

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