Marital Rape and Child Rights in India: A Case for Complete Legal Reform

Author: Raghunandini Vijay Singh, D.E.S Navalmal Firodia Law College

The decision of the esteemed Supreme Court of India in the case of Independent Thought v. Union of India (2017)¹ marks a historic movement and a step forward in India’s journey towards safeguarding gender justice and child rights which were overlooked for a very long time.The long awaited and much debated decision struck down the exception in Section 375 of the Indian Penal Code that allowed marital rape of minor wives. The glaring and questionable inconsistency in the country’s legal framework was addressed by the Court.

This article critically analyses the statutory, constitutional and international laws that were taken into consideration that ultimately led to this judgment. It also explores the implications for future legal reforms, especially on the ongoing issue of marital rape involving adult women. The article also underscores the urgency for further legislative and judicial action by highlighting the judgment’s alignment with the global human rights norms and its potential to reshape India’s socio-legal landscape.

Keywords: Marital rape, child marriage, constitutional rights, POCSO Act, gender justice, Supreme Court

The Indian Society which is deeply embedded in patriarchal structures has long grappled with its legal and societal frameworks. While numerous laws centered around and aim to protect women and children, outdated provisions and inconsistencies still prevail which often undermines everything. One such legal paradox was the existence of Exception 2 to Section 375 of the IPC, which exempted a husband from being charged with rape if his wife was over 15 years of age—even when such marriage would be illegal under other laws.

Studies by the National Law School of India University, Human Rights Watch, and Indian feminist legal scholars such as Flavia Agnes have consistently highlighted the contradictions between IPC provisions and child protection laws.

Prior to 2017, the marital rape exemption led to a lot of exploitation of minor girls under the pretense of marriage. Reports by the National Commission for Protection of Child Rights (NCPCR) and international organizations pointed India’s outdated stance. There was a violation of the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). 

This article uses legal research supported by statutory interpretation,comparing legal frameworks and case law analysis. Primary decisions include statutory laws and judicial decisions,while secondary sources include government reports. All references follow the Bluebook 20th Edition citation format

The petitioner – an NGO working for child rights –Independent Thought, filed a writ petition under Article 32 of the Indian Constitution. It challenged the constitutional validity of Exception 2 to Section 375 IPC. The clause said that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 

This exemption resulted in a conflict with Prohibition of Child Marriage Act (PCMA)¹, which set the legal of age of marriage for girls at 18,and Prevention of Children from Sexual Offences Act (POCSO), which defined “a child: as anyone below 18 years of age and criminalised all forms of sexual assault against them . This exception effectively permitted statutory rape within a child marriage,granting an immunity to the husband.

1. Whether Exception 2 to Section 375 IPC violated Articles 14, 15, and 21 of the Constitution².

2. Whether the marital status could serve as a defense for a man against the allegations of statutory rape .

3. Whether this exception was in conflict with the existing child protection laws like Prohibition of Child Marriage Act (PCMA) and Prevention of Children from Sexual Offences Act (POCSO).

4. Whether India’s obligations under international conventions necessitated the removal of this exemption.

Petitioner’s Arguments:

• Exception 2 was discriminatory in all aspects and violated some vital rights like the right to equality (Article 14), the right against discrimination (Article 15), and the right to life and personal liberty (Article 21)¹.

• It contradicted Prohibition of Child Marriage Act (PCMA) and Prevention of Children from Sexual Offences Act (POCSO), which collectively disallow sexual relations with individuals (termed as a “minor”) below the age of 18.

• The provision legitimized and recognised child sexual abuse under the pretext of marriage.

• It breached international obligations under CRC (Convention on the rights of the child) and CEDAW (Convention on the elimination of all forms of discrimination against women).

Respondent’s Arguments:

• Legislative intervention, not judicial activism, was the appropriate route and solution for any reforms.

• The provision was in line with cultural practices of the society of India and aimed to protect the sanctity of marriage as a religious and social institution.

• Personal laws varied across religions and needed to be respected.

• It would destabilize family structures and intrude into the private sphere of marriage.

• It emphasized that marriage is governed by personal laws, which vary across religious communities, and any change affecting such laws should be approached legislatively, rather than through judicial pronouncement.

• The law can be misused to harass the husbands,disturbing the social harmony of the parents and children.

On October 11, 2017, the Supreme Court, through a bench comprising Justice Madan B. Lokur and Justice Deepak Gupta, announced that Exception 2 was unconstitutional so far and did not go in line with the existing laws as it allowed sexual intercourse with a wife aged between 15 and 18 years.

Key Observations:

• The exception was arbitrary and discriminatory in nature, creating a class of minor girls who could be legally raped by their husbands.

• The court emphasized that personal laws could not override constitutional guarantees.

• It violated fundamental rights under Articles 14(Right to Equality), 15(the right against discrimination), and the right to life and personal liberty (Article 21).

• It also conflicted with Prohibition of Child Marriage Act (PCMA) and Prevention of Children from Sexual Offences Act (POCSO).

The stance of India on marital rape,in concern with the minors,has long been outdated with the prevailing global norms. For instance,in the UK,marital rape exemption in R V. R (1991)² was abolished by the House of Lords.

In the United States,marital rape is criminalised in all 50 states. Bangladesh and South Africa have also made the needed changes by criminalising all forms of non-consensual sex within marriage. 

India’s retention of Exception 2 stood as an anomaly until this ruling. The verdict delivered by the Supreme Court moved the country closer to the standard of International Human Rights and set a way for more reforms.  

This decision empowered countless minor girls who were previously denied legal recourse due to the marital rape exemption. It prompted broader discussions on the sanctity of consent, even within marriage.

This landmark decision led to the empowerment of countless minor girls who were trapped in the net of marriage, abuse and archaic laws. They were previously denied a legal relief due to the marital rape exemption. The case also encourages broader discussions on the importance of consent, even within marriage.

Key Implications:

• Led to the bolstering of child protection frameworks which were overlooked for a long time.

• Sparked a countrywide and legislative debate on criminalizing marital rape for adult women.

• Elevated India’s compliance with international conventions.

• Challenged outdated patriarchal notions surrounding marriage and sexual rights.

However, the ruling only addressed child brides below the age of 18. The law still does not recognize marital rape involving adult women, reflecting a significant gap in India's legal system.

It is quite important that our country adopts a workable strategy to address marital rape and child marriage. The following recommendations are not only crucial but also important for a just system in the society:

1. The Indian Penal Code should remove all exceptions that legitimize marital rape. There should be zero tolerance for rape in our country, irrespective of her age and the relation a woman has with a man. Marriage should not be used as a shield to justify unconsented sex. A woman as a human being has a fundamental right to bodily autonomy and consent. 

2. The government should pass a dedicated law recognising and criminalising martial rape no matter the age of the victim. This law should set clear boundaries by including definitions, safeguards, victim protection and ways of relief and rehabilitation.

3. Authorities must be held responsible for any lapses and statues like Prohibition of Child Marriage Act and Protection of Children from Sexual Offences must be implemented strictly.

4. Government officials must have a regular training on gender sensitivity, marital rape and child rights. The curriculum should challenge the patriarchal mindset of the society and bring about a change. 

5. The society and the government should collaborate and launch nationwide campaigns to educate the community on the importance of consent, evils of child marriage and illegal forced sex in marriage. The topic should not be looked upon with shame or stigma. 

6. The school curriculum should be equipped with concepts such as consent, child protection and gender equality to raise an aware generation which can act as a preventative measure.

7. Immediate support helplines, legal aid centers and psychological support should be provided to the victims of marital rape. 

8. A periodic review of the laws should be done by the government to check the applicability of the law. 

These recommendations would move India closer to a justice system that upholds the dignity, autonomy, and rights of every individual—married or unmarried, adult or minor. The judgment in Independent Thought must be seen as a starting point for deeper and structural change in the society.

The judgment in the Independent Thought v. Union of India was a historic step in strengthening child protection rights and meeting international standards. It gave minor girls the right to bodily autonomy and freedom from exploitation, even in the bounds of marriage. 

The battle for gender justice still continues till this day and is not over yet. Until marital rape is fully recognized and criminalized—regardless of the wife’s age—the legal system will continue to fall short of protecting women’s rights. This case has led to a foundation, the way is yet to be paved. 

• CEDAW, Dec. 18, 1979, 1249 U.N.T.S. 13 (Convention on the Elimination of All Forms of Discrimination Against Women).

• Constitution of India, arts. 14, 15 & 21.

• Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.

• Flavia Agnes, Marital Rape and the Law in India, 49 ECON. & POL. WKLY. (EPW) (2014).

• Independent Thought v. Union of India, (2017) 10 S.C.C. 800 (India).

• Indian Penal Code, No. 45 of 1860, § 375.

• National Commission for Protection of Child Rights Reports (2016–2018) (India).

• Prohibition of Child Marriage Act, No. 6 of 2007, Acts of Parliament, 2006 (India).

• Protection of Children from Sexual Offences Act, No. 32 of 2012, Acts of Parliament, 2012 (India).

• R v. R, [1991] UKHL 12 (U.K.).