Author: K. Meghana, NALSAR University of Law

In India, the incidents of rape are occurred frequently. The recent data published by the Times of India showed that incidents of rape increased by 8% with 3,054 cases registered in 2024 compared to 2,826 in 2023. This data shows only incidents of rape that is defined under section 375 of Indian penal code, ignoring the instances of marital rape as it comes under the exception of section 375. This blog shows how the construction of marital rape became an exception and how it is discriminatory. 

Rape is defined under section 375 as “a sexual act by a man against a woman without her consent or with coercion, these acts include penetration of the penis into the vagina, urethra, mouth or anus of a woman.  Rape can also involve inserting of any object or part of the body other than penis into the vagina, anus, urethra. Furthermore, it includes penetration by manipulating any part of the woman's body, as well as using the mouth on the vagina, anus or urethra”. Every such act that is committed without consent or under specified coercive conditions will amount to rape under IPC. 

Exception 2 of 37, this section provides an exception that any sexual act or sexual intercourse by a man with his wife, provided wife not being under 15 years of age does not amount to rape. This section is deemed to be controversial as it is very discriminatory and demeans women’s autonomy in a marriage and reinforces patriarchal norms.

The Indian Penal Code was created in the 1860s by the British to control Indians. Back then, only men would make decisions for women, as women couldn’t vote, own property, or have any freedom to express their opinions. The notion that a woman's body is subject to her husband after marriage came from the British, as they saw marriage as a contract where a woman submits her body to her husband for good, adding on to it the Manusmriti in India, which was written around 200 BCE, says wife had to obey and her husband is always superior. By 1736, Matthew Hale, a British judge, declared that a wife agrees to sex forever when she marries. A rule that was welcomed in India by the colonizers, and the same was inculcated in the penal code, normalizing non-consensual sex within marriage without any consequences for the husband. Women have been considered property of their fathers and their husbands, leaving them no autonomy.    

Sexual intercourse in a marriage without the consent of the spouse amounts to marital rape or spousal rape, absence of consent is essential in proving rape. Marital rape is a form of domestic violence and sexual abuse. It has been traditionally held that sexual intercourse between spouses is their right, in an evolving society, intercourse without consent of the spouse is regarded as rape. It is criminalized in many societies across the world. India is one among the thirty-six countries which have not criminalized marital rape. 

In the case of Harivinder Kaur v Harmander Singh, the Delhi High Court held, “in the privacy of the home and married life, neither article 14 nor article 21 of the constitution has a role in the play”. The court held that the constitution cannot intervene in household matters as it would destroy the institution of marriage. In the case of the state of Maharashtra & anr v Madhukar Naryan Mardikar, the SC held that every woman's right to privacy must not be violated and must be protected. Justice Verma committee was constituted after the Nirbhaya case in 2012, which suggested criminalization of marital rape asserting marriage doesn’t give irrevocable consent to sexual activites, but the government ignored the suggestions. Later in 2015, a public interest litigation in the Delhi HC was filed by the RTI foundation, which claimed the exception is violative of fundamental rights under articles 14, 15, 19, and 21 of the Constitution.  In the case of independent thought v union of India the SC has deciphered marital rape exception as it violates the rights of girls who are married between the age of 15 and 18 years. The SC requested the exception to be meaningfully read as: "Sexual intercourse or sexual acts by a man with his wife, the wife not being under eighteen years of age, is not rape."

In the case of Anuja Kapur v Union of India a PIL was filed asking government of India to frame laws and to give some guidelines regarding marital rape. But this request was refused by Justice BR Gavai, reasoning that the legislature must formulate laws and the judiciary's task is not to draft laws but rather to interpret. 

Article 14 defines equality before the law and equal protection under the law within the territory of India.  Marital rape exception is violative of article 14, as it acts prejudicially against women who are raped by their husbands. The exception has made two classes of women: married and single women. There's no reasonable nexus of this classification produced by exception 2 and the primary purpose of this act; it doesn’t comply with the reasonableness test and hence is violative of Article 14. 

Exception 2 of 375 is violative of Article 21 of the Constitution, it excludes marital rape from the definition of rape. Article 21 guarantees the right to life and personal liberty. The Supreme Court has suggested including rights as dignity, bodily autonomy, privacy, health, and freedom from coercion. The right to make intimate decisions and sexual autonomy are recognized as essential components of Article 21; these rights are applied equally to all women, both married and unmarried women, and individuals' right to privacy or consent is not negated by marriage. opponents of criminalizing marital rape argue that there’s a likeliness of fraudulent cases being filed against the husbands and, marriage is sacred and criminalization would lead to destabilization of society. 

In conclusion marital rape is should be treated as crime and women’s right to autonomy and right to make decisions should be respected, it is nowhere a husband’s right to threaten or force his wife to involve in any sexual activity. Marital status should not be a determining factor if rape is committed or not. It is an unfair law and should be penalized. It is high time the Legislature must recognize this unfair law and strike it down, as it’s the state's duty to protect individuals irrespective of their marital status and must recognize their fundamental rights. 

1. Manali Desai, Gendered Violence and India’s Body Politic, 99 New Left Rev. 67, (2016)

   
   

2. Debabrata Mohapatra, Rape Cases Rose by 8% in 2024; Total Cases Registered Went Up by 7%: CM, Times of India (Feb. 17, 2025, 8:17 PM IST), https://timesofindia.indiatimes.com/city/bhubaneswar/rape-cases-rose-by-8-in-2024-total-cases-registered-went-up-by-7-cm/articleshow/118334107.cms.

   
   

3. Anuja Kapur v Union of India, AIR 2020 DEL 1412.

   
   

4. Harvinder Kaur vs Harmander Singh, AIR 1984 DELHI 66.

   
   

5. Independent Thought v. Union of India, AIR 2017 SUPREME COURT 4904.