Author: Sanskriti Mishra, NIMS University, Jaipur

One of the most urgent yet unresolved problems in the Indian legal system is marital rape. India is one of the few nations that does not have a criminal law against marital rape, even though it is widely acknowledged as a violation of human rights. This article explores the constitutional, legal, and historical aspects of marital rape in India. It analyses statutory provisions such as Exception II to Section 375 of the Indian Penal Code (now under Section 63 of Bharatiya Nyaya Sanhita), looks at significant court rulings, considers the applicability of international standards, and integrates information from the National Family Health Survey and expert committee recommendations. In its conclusion, the paper recommends comprehensive legal reform and argues for a rights-based approach.

Keywords: Marital rape, Section 375 IPC, Exception II, Bharatiya Nyaya Sanhita, Justice Verma Committee, Fundamental Rights, NFHS, Coverture, Judicial Interpretation

In India, marital rape—which is defined as a husband engaging in non-consensual sexual relations with his wife—remains illegal. The fundamental presumption of irreversible consent at marriage is still ingrained in statute law, especially in Exception II to Section 375 of the Indian Penal Code, which declares that sexual contact between a man and his wife (who is not younger than 15) is not considered rape. This clause is still in place in the revised Bharatiya Nyaya Sanhita despite changing constitutional jurisprudence. Over 100 nations have made marital rape a crime worldwide, but India is lagging behind. By exposing the contradictions in the moral and legal justifications for this controversial exception, this article aims to close the gap between the law and lived realities.

There is a wealth of research on marital rape from sociological, legal, and feminist viewpoints. According to academics like Flavia Agnes and Indira Jaising, the Exception infringes upon women's equality and bodily autonomy. Both the Justice Verma Committee and the 172nd Law Commission Report have demanded that the exception be eliminated. Marital rape is regarded as a violation of human rights under international law, including CEDAW and the Declaration on the Elimination of Violence Against Women. According to court rulings in Joseph Shine v. Union of India and Independent Thought v. Union of India, there has been a slow change in the view that marital rape is unconstitutional. The conflict between political will and legal reform was highlighted when the Parliamentary Standing Committee (167th Report) rejected criminalization due to possible misuse.

A doctrinal and analytical legal methodology is used in this article. It draws from a variety of primary and secondary sources, such as international instruments, statutory texts, court rulings, Law Commission reports, and constitutional provisions. The socio-legal impact of the legal vacuum is also evaluated using empirical data from NFHS-5 (2019–2021). The goal of the study is to present a comprehensive analysis of the marital rape controversy in India as well as recommendations that are sound from a legal standpoint.

An examination shows a clear discrepancy between statutory laws and constitutional principles. Due to antiquated presumptions of implied consent in marriage, marital rape is still exempt even though it violates Articles 14, 19, and 21. Nearly 30% of married women report having been the victim of spousal sexual violence, according to NFHS-5, but the conviction rate is very low because it is not recognized by the law. The marital rape exception for minors has been read down by judges in cases such as Independent Thought, suggesting that it may eventually be recognized by adults. India's regressive attitude is demonstrated by the fact that comparable countries like the UK, Nepal, and South Africa have all made marital rape a crime.

The Doctrine of Coverture, which views a wife as subsumed under her husband, is the foundation of the legal immunity granted to husbands. Even though this has been outlawed worldwide, Indian criminal law still retains some of its remnants. This exception violates Article 14 (right to equality), Article 19 (right to freedom of expression and dignity), and Article 21 (right to life and personal liberty). The Supreme Court placed a strong emphasis on autonomy and dignity in close relationships in the cases of Joseph Shine v. Union of India (Adultery) and K.S. Puttaswamy v. Union of India (Right to Privacy). However, the legislature's hesitation, as evidenced by the 2017 Home Ministry affidavit and the Parliamentary Committee's recommendation, shows political and social conservatism.

The Supreme Court declared the marital rape exception for wives between the ages of 15 and 18 to be unconstitutional in the case of Independent Thought v. Union of India. However, the issue for adult women remains unresolved following the Delhi High Court's 2022 split verdict in RIT Foundation v. Union of India. The exception was upheld by Justice Hari Shankar after Justice Shakdher ruled it to be unconstitutional. The Supreme Court is currently considering the case.

The Justice Verma Committee also strongly advocated making marital rape a crime, saying that "the exemption of marital rape stems from a wrong notion of marriage." The Criminal Law (Amendment) Act of 2013 disregarded its proposal to amend Section 375 IPC in order to eliminate Exception II.

Comparative analysis demonstrates forward-thinking methods. In 2006, Nepal made marital rape a crime. In 1993, South Africa took this action. In R v. R, the House of Lords in the United Kingdom declared that marriage does not imply irrevocable consent, thus eliminating the marital rape exception.

In a democracy that professes to support individual liberty and gender equality, the continued existence of Exception II to Section 375 IPC (now Exception II to Section 63 BNS) is a stark contradiction. Complicity in systemic violence is what happens when the law remains silent. Even though it can be progressive in some situations, judicial interpretation is still fragmented and useless in the absence of legislative will. Criminalizing marital rape is strongly required by the constitution, morality, and international law.

1. Statutory Reform: Declare non-consensual sexual relations within a marriage to be rape by repealing Exception II to Section 63 of the BNS, 2023.

2. Comprehensive Definition: Regardless of marital status, redefine "rape" to encompass all types of non-consensual sexual acts.

3. Awareness Campaigns: Start educating the public about consent and bodily autonomy through the legal system.

4. Judicial Training: Make prosecutors and judges more aware of how to deal with violence against intimate partners.

5. Victim Support: Establish crisis centres for marital rape that provide medical, legal, and psychological support.

6. Legislative Clarity: Parliament needs to confirm that marriage does not grant permission to disregard consent, which is dynamic and individual.

• Indian Penal Code, 1860 (Section 375, Exception II)

• Bharatiya Nyaya Sanhita, 2023 (Section 63, Exception II)

• Justice Verma Committee Report (2013)

• Law Commission of India: 42nd, 84th, and 172nd Reports

• Parliamentary Standing Committee on Home Affairs, 167th Report

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

• K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1

• Joseph Shine v. Union of India, (2018) 2 SCC 189

• RIT Foundation v. Union of India, 2022 (Delhi HC Split Verdict)

• R v. R, [1991] 1 AC 599 (UK House of Lords)

• CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women)

• NFHS-5 Report (2019-21), Ministry of Health and Family Welfare

• Flavia Agnes, "Law and Gender Inequality: The Politics of Women's Rights in India," Oxford University Press, 2001

• Parliamentary Standing Comm. on Home Affairs, 167th Report on the Bharatiya Nyaya Sanhita, 2023 (India).