Introduction:
Marriage is sacred according to the traditions of Indian societies, with obligations and responsibilities, and rights attached to it. However, this very institution has also been misused to justify certain immunities under the law that circumvent the constitutional rights of women. One such immunity is the marital rape exception in Section 375 of the Indian Penal Code (IPC), 1860, which exonerates a husband from the crime of non-consensual intercourse with his wife, provided that she is above 18 years of age in terms of the definition of rape. This exception indicates the primitive patriarchal concept of marriage as implying a perpetual consent to sexual intercourse, which relegates a wife’s autonomy and bodily integrity to secondary importance against her husband’s conjugal rights. The exception has undergone an increasing constitutional critique in light of emerging constitutional jurisprudence, international commitments to human rights, and judicial enunciations of the right to privacy and dignity. This article is about the statutory framework, judicial precedents, constitutional validity, comparative perspectives, and ongoing debates regarding the criminalization of marital rape in India.
Statutory Framework
Section Rape 375 IPC (Definition)
The judgment defining rape in Section 375 IPC is as follows: rape occurs when a man has sex with a woman under certain conditions against her will and consent, and uses coercion, among others. Exception 2 is attached to it, which states:
“A man having sexual intercourse with his wife while she is above the age of 18 years, shall not be deemed to have committed rape against her.”
This means that once a woman is more than 18 years of age, her husband would be entitled to immunity from prosecution if he were to be accused of raping her.
Section 376B IPC
Of course, marital rape has not been recognized, yet punishment for sexual intercourse by a husband upon his wife when they are separated (judicial or otherwise) without her consent lies under Section 376B IPC, and that might lead to imprisonment of between 2 and 7 years. Therein itself, however, lies tacit acknowledgment by law that consent in marriage is relevant when parties live separately but paradoxically not when they live together.
Historical justification of the marital rape exception
The marital rape exception has a root in the doctrine of coverture and Sir Matthew Hale’s proclamation stating that marriage means an irrevocable consent by a woman to sexual intercourse with her husband. This doctrine had been lifted into Indian colonial law and is still persisting. That exception assumes that a wife has given consent the moment she gets married, thus denying her autonomy. Modern constitutional jurisprudence, however, recognizes women as independent individuals under Articles 14, 15, and 21 of the Constitution.
Constitutional Challenges
The marital rape exemption has been challenged on many fronts:
1. Violation of Article 14 (Right to Equality)
Article 14 provides for equality before the law and equal protection of law. Exception 2 to Section 375 IPC creates an unreasonable classification that exists between married and non-married women:
- An unmarried woman is protected from non-consensual sexual intercourse.
- Married women lose this protection if above 18.
There is no rational nexus between the object of rape laws meant for protection of the bodily autonomy of women. Courts have repeatedly struck down provisions discriminatory against women under Article 14, as in Anuj Garg v. Hotel Association of India (2008) 3 SCC 1. For example, no gender stereotype could justify differential legislation.
2. Violation of Article 15 (Non-Discrimination on Grounds of Sex)
Article 15 prohibits discrimination based on sex. The marital rape exception has been defined solely based on marital status and reinforces that the bodies of women lose autonomy when they marry.
3. Violation of Article 21 (Right to Life and Personal Liberty)
In Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, the Supreme Court recognized privacy, dignity, and bodily integrity as part of Article 21. The law deprives married women of these rights by denying reference to marital rape.
Again, Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1 endorsed the right to autonomy in reproduction to be a fundamental right. The similar reasoning went in favor of Independent Thought v. Union of India (2017) 10 SCC 800, where the Supreme Court read down Exception 2 to Section 375 IPC, raising the marital age of consent to the 18 years limit because the marriage of a girl cannot extinguish her right against rape. Such reasoning can be equally applied to adult married women.
4. Violation of Article 19 (Freedom of Expression and Choice)
Having control over one’s sexual choices is a fundamental aspect of personal freedom as outlined in Article 19(1)(a) and Article 21.
The exception for marital rape undermines a woman’s sexual autonomy within the confines of marriage.
Judicial Developments
Independent Thought v. Union of India (2017)
In this landmark case, the Supreme Court ruled that sexual intercourse with a minor wife under the age of 18 is considered rape, effectively narrowing the scope of the Exception. The court made it clear that marriage should not serve as a justification for sexual exploitation.
Joseph Shine v. Union of India (2019)
When the Court struck down Section 497 IPC (adultery), it dismissed outdated patriarchal views that sought to control a wife’s sexuality, highlighting the importance of autonomy, dignity, and equality. This reasoning strongly supports the argument against the constitutionality of the marital rape exception.
RIT Foundation v. Union of India (Delhi High Court, 2022)
The verdict was split:
Justice Rajiv Shakdher deemed Exception 2 unconstitutional, stating it violated Articles 14, 15, and 21.
Justice C. Hari Shankar, On the other hand, upheld the exception, arguing that marriage creates a unique bond where different standards might apply.
The case is now awaiting a decision from the Supreme Court of India.
International Law and Comparative Perspectives
India is a party to several international agreements that require the protection of women’s rights:
CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) mandates that states work to eliminate discrimination in marriage.
The Universal Declaration of Human Rights (UDHR) from 1948 guarantees dignity and equality for all.
The International Covenant on Civil and Political Rights (ICCPR) from 1966 protects individuals from cruel and inhumane treatment.
Around the world, more than 100 countries have made marital rape a criminal offense, including the UK, USA, Canada, and South Africa. In the UK, the House of Lords in R v. R (1991) 1 All ER 747 abolished the marital rape exemption, asserting that a wife’s consent cannot be assumed indefinitely. Despite these international standards and constitutional provisions, India still falls short in this regard.
Arguments Against Criminalisation
Some of the arguments put forth against criminalising marital rape are:
- Possibility of Misuse: The critics are of the view that criminalisation might result in false cases and abuse by angry spouses. But this argument is speculative and cannot be used to deny protection to actual victims.
- Sanctity of Marriage: Some also argue that criminalisation would destabilise marriages. But the institution of marriage cannot take precedence over fundamental rights.
- Existing Remedies under the Domestic Violence Act (2005): It is contended that civil remedies exist. But the Domestic Violence Act offers only protection orders, and not criminal liability for rape.
Law Commission Reports
Law Commission of India (42nd Report, 1971) and 172nd Report (2000) deliberated over the question but did not suggest complete criminalisation. Justice J.S. Verma Committee Report (2013), formed after the Nirbhaya case, vehemently suggested the abolition of Exception 2 to Section 375, upholding the principle that marriage cannot be a rape defence.
Constitutional Morality vs. Social Morality
The Supreme Court has placed focus on the principle of constitutional morality in cases such as Navtej Singh Johar v. Union of India (2018) 10 SCC 1, holding that rights that are fundamental cannot be withheld because of societal norms. Therefore, even if society is opposed to criminalisation, constitutional assurances have to take precedence.
Conclusion
The marital rape exception is an anachronistic remnant incompatible with constitutional values and international commitments. In withholding protection from married women, it reinforces patriarchal dominance over women’s bodies and contravenes Articles 14, 15, and 21. With the Supreme Court’s forthcoming order in RIT Foundation v. Union of India, India has an opportune constitutional moment. Legislative change to repeal Exception 2 to Section 375 IPC, along with support services for survivors, is necessary. Marriage should never be a licence to rape. Legal recognition of marital rape as a crime is necessary to realize the constitutional guarantee of equality, dignity, and freedom for all women.
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