Why is Marital Rape still not a crime in India?

20 Sep 2021  Read 8959 Views

While practically every nation in the world recognises unwanted sexual contact between a husband and a wife as a crime, India yet remains to be one of thirty-six nations that has yet to prosecute marital rape. It is a socially accepted norm that after engaging in a marital relation, a wife is considered to give her husband eternal agreement to have sexual relations with her. This makes it highly essential to bring out changes in the marital laws of nations worldwide in order to establish rule of equality and maintain order of justice, especially in a “Nation of Goddesses” like India.

The Indian Penal Code and Marital Rape

All kinds of sexual abuse including non-consensual contact with a woman are included in the definition of rape established in Section 375 of the Indian Penal Code ("IPC"). Exception 2 to Section 375, on the other hand, exempts reluctant sexual intercourse among a husband and a wife over the age of fifteen from the meaning of "rape" under Section 375, and henceforth protecting such actions from prosecution.

The Supreme Court of India and several High Courts are being inundated with writ petitions questioning the legitimacy of this provision, and the Supreme Court recently criminalised undesired sexual contact with a wife between the ages of fifteen and eighteen in a landmark decision of Independent Thought vs. UOI. However, the act of marital rape has not yet been criminalised for wives of above eighteen years of age. As a result of this decision, other writs have been filed in the Apex Court which challenged the validity of Exception 2 as a whole.

A married woman was not regarded a separate legal entity when the IPC was created in the 1860s. Rather, she was thought to be her husband's property. As a result, women lacked many of the rights that come with being an independent legal entity, such as the ability to bring a lawsuit against someone else under her own name. Exception 2 to Section 375, which basically excludes husbands' activities against their wives from being regarded acts of "rape," is heavily inspired by and drawn from the already existent doctrine of blending the woman's identity with that of her husband.

The origins of this philosophy can be dated back to Victorian-era British colonial rule. During the nineteenth century, India was a British colony. At this period, all Indian laws were heavily affected by English laws and Victorian customs. The marital exclusion to the IPC's concept of rape was developed in response to Victorian patriarchal standards that denied men and women equality, barred married women from owning property, and blended husband and wife identities under the "Doctrine of Coverture."

However, the world has changed. Husbands and wives now have distinct and separate legal personalities under Indian law, and much current jurisprudence is particularly focused with women's safety. This concern is reflected in the multiplicity of statutes enacted since the beginning of the century to protect women against violence and harassment, such as "The Protection of Women from Domestic Violence Act" and "Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act (POSH)."

Marital Rape in the Light of Article 14 of Constitution

Article 14 of the Indian Constitution stipulates that the Statutory Authorities must not refuse to any individual who is within the Indian territory equality before the law or equal protection of the laws.  Despite the fact that the Indian Constitution provides equality to all people, Indian criminal law discriminates against women who have gone through the excruciating trauma of being raped by their own marital partners.

Inasmuch as it discriminates towards married women by refusing them equal protection from rape and sexual harassment, Exception 2 contravenes Article 14 and the right to equality enshrined under it. The Exception divides women into two groups according to their marital status and protects males from committing crimes against their spouses. As a result, the Exception allows married women to be victimised only because of their marital status, whereas unmarried women are protected from the same offences.

The difference made between married and unmarried women in Exception 2 also infringes Article 14 because the categorization produced has no reasonable relationship to the statute's underlying aim. The Supreme Court held in Budhan Choudhary v. State of Bihar that any classification made under Article 14 of the Indian Constitution is susceptible to the test of reasonableness that can only be carried if the categorization has a rational connection to the goal of the act.

This was also reiterated in State of West Bengal v. Anwar Ali Sarkar.  However, Exception 2 defeats the objective of Section 375, which is to protect women and punish those who commit rape. Exempting husbands from penalty is diametrically opposed to that goal.  W whether a woman is married or single, the repercussions of rape are the same.

Furthermore, because they are legally and financially bound to their spouses, married women might find it more difficult to flee violent situations at home. In truth, Exception 2 promotes husbands to force sexual contact with their spouses since they understand their actions will not be prohibited or punished by the law. Since no rational link can be established between the categorization formed by the Exception and the Act's underlying goal, it fails to pass the reasonableness test and therefore breaches Article 14.

Massive Violation of Right to Life and Liberty

The second facet of marital rape laws in India is the massive violation of Article 21 of the Indian Constitution by Exception 2. Article 21 declares that no one shall be deprived his or her life or personal liberty except for in accordance with the legal procedure.  In several decisions, the Supreme Court has construed this phrase to go beyond the simply literal protection of life and liberty. Instead, it has ruled that the rights contained in Article 21 include, among other things, the rights to health, privacy, dignity, secure living circumstances, and a healthy environment.

In recent years, courts have come to recognise that the fundamental right to life and personal liberty include a right to withdraw from sexual intercourse and to be rid of unwanted sexual behaviour. In State of Karnataka v. Krishnappa, the Supreme Court found that sexual violence is an illegal invasion of a woman's right to privacy and sanctity, in addition to being a demeaning act. Non-consensual sexual contact is considered sexual and physical assault, according to the same ruling. In Suchita Srivastava v. Chandigarh Administration, the Supreme Court associated the right to make sexual activity decisions with Article 21 rights to personal liberty, privacy, dignity, and bodily integrity.

The Supreme Court has specifically recognised a right to choose intimate relationships in Article 21. The Highest Court in Puttuswamy v. UOI recognised the right to privacy as a fundamental right of all citizens, holding that it includes decision- making privacy mirrored by a capacity to make intimate choices emphasising of one's sexual or procreative essence and choices in respect of intimate encounters.  Forced sexual cohabitation is an affront to that basic right.

The preceding judgements make no distinction between the rights of married and unmarried women, and there is no contrary ruling establishing that marital association abridges an individual's right to privacy. As a result, the Supreme Court has recognised the right of all women, regardless of marital status, to refrain from sexual intercourse as a basic right provided by Article 21 of the Constitution.


By all the statutory provisions and case laws discussed, it can be concluded that although marital rape is not termed as a criminal offence under IPC in India, it yet remains to be against the provisions of fundamental rights enshrined in the Constitution, which supersedes any criminal law. It is clearly established that Article 21's "right to life" and Article 14's "right to equal treatment under the law" are not merely rights to exist.

In this vein, courts have consistently found that the "right to life" includes the right to live with dignity. It has also stated numerous times that discrimination in rape clauses between married and unmarried women is a violation of Article 14. Exception 2, on the other hand, which fails to dissuade husbands from committing an act of forced sexual contact with their wives, has a negative impact on women's physical and mental health, as well as their capacity to live with dignity. 

Articles 14 and 21 of the Constitution are obviously violated by Exception 2 to Section 375 of the IPC, as evidenced by the aforementioned conclusions. It is past time for Indian law to recognise the brutal nature of this provision and strike it down.

About the Author: Sakshi Shrivastava | 15 Post(s)

Sakshi is a 3rd year student at Hidayatullah National Law University, with a keen interest in Corporate and Competition Laws. She describes herself as an extrovert known to be quite vexing!

Liked What You Just Read? Share this Post:

Finology Blog / Criminal Law / Why is Marital Rape still not a crime in India?

Wanna Share your Views on this? Comment here: