As long as they are married, it is perfectly legal for a man to rape a woman
in India. Section 375 of the Indian Penal Code, 1860, which classifies rape as a
crime, provides this exemption as a "sexual activity with a woman without her
consent, against her will, by coercive power, misdirection, or deception, or at
a period when she is intoxicated, or is of unsound mind, and in any case, if she
is a minor that is below the age of 18."
The exception 2 of the section stating that, "sexual relations or sexual
intercourse by a male partner with his wife could not be considered rape if his
wife is not a minor i.e., under the age of eighteen," essentially ruling out
marital rape from the list of criminal offences in India.
Not only this but until five years ago, girls aged fifteen to eighteen were not
even protected by rape legislation as it stands today. In 2017, the Supreme
Court increased the original age of fifteen except eighteen and held that the
section should read "the wife not being under eighteen years of age" in the case
of Independent Thought v. Union of India (2017)
. But this judgment was
limited to making sure that the IPC was in line with the age of consent, which
is eighteen, and hence, was not able to address and recognize the bigger issue
of the marital rape exception for adult partners.
India is amongst three dozen countries in the world wherein wives cannot
initiate a criminal case against their male partners for nonconsensual sex,
while other countries recognize that rape is rape, and it should be penalized
irrespective of the relationship between the perpetrator and the victim. Then
what is holding India, an up-and-coming "superpower," back from penalizing this
A critical will be all it takes to break the reasons down to two basic
barebones: misogyny and misconceptions. These two factors form the foundation of
arguably the most persistent hurdle in the way of India penalizing marital rape:
a rigidly patriarchal society spanning across India's myriad of religions, that
suppresses women's agency over their bodies, giving way to a unified culture
where, in the dated sense of words, marriage and family still hold utmost
importance as the building blocks of society.
The burden of maintaining this culture, of course, lies mostly on women, who are
expected to make "sacrifices" to preserve the "sanctity of marriage." Public
opinion plays a vital role in shaping these constructs in a country like India,
one of the biggest democracies on the planet, where governmental actions become
the function of opinion rather than of force and the public's will is enacted
into law by the public representatives themselves.
Therefore, the campaign to criminalize marital rape in India then is not just
about changing the law on paper. It is about attacking the ingrained mentality
that still views the wife as her husband's property and not as an individual
with her agency. It is about fighting against this notion of marital sanctity
that is based on the subjugation of women. And it is about challenging this
larger rape culture that deprives women of their fundamental liberties, respect,
and bodily autonomy.
Brief History and Developments
In most parts of the ancient world, the earliest laws defined rape as a crime of
theft against the father or the husband, rather than the woman herself.
Therefore, by definition, a husband could not rape his wife because within a
marriage a man could do whatever he wanted to with his property, i.e., his
Rape of a woman used to be considered a property crime against a father or a
husband, and not against a woman's right to self-determination. This property to
be withheld in a female was her virginity or sexual purity. A man could not
possibly be prosecuted for raping his wife because a woman's "purity" could not
be violated by the husband as he practically "owned" her.
The British Jurist Sir Matthew Hale described marriage as a legal contract in
which a woman "gave herself" to the husband for life. In the 18th and 19th
centuries with the growth of middle-class mentality and Victorian morality, the
emphasis on women's chastity increased and rape began to be seen as a threat
that women faced outside their household which the male figures in their
families had to protect them from.
It was under the influence of these laws and values that the Indian Penal Code
was drafted in 1860 under the English Common Law system. Most of the public
opinion on marital morality helped shape various sections including Section 375
which categorically excluded marital rape from the definition of punishable
Cut to a century and a half later, feminist movements across the world,
including in India, have highlighted the significance of consent and empowered
women to report sexual violence, regardless of the identity of the perpetrator.
Such activist movements have led to various progressive changes in India's
anti-rape laws in 1983 (The Criminal Law (Second Amendment)), in 2002 (Amendment
to Indian Evidence Act), in 2012 (Protection of Children from Sexual Offences
Act), and again in 2013. And yet, India continues to uphold a man's right to
rape his wife. Why?
A week after the Nirbhaya gang and murder case in 2012, a committee under
Justice (Retd.) J. S. Verma was formed by the UPA government to propose
"possible amendments to the Criminal Law to provide for quicker trial and
enhanced punishment for criminals committing sexual assaults of extreme nature
against women." The Commission received 80,000 suggestions and finalized its
644-page report, within 29 days, and recommended sweeping changes.
While some of its recommendations contributed to shaping The Criminal Law
(Amendment) Act passed in 2013, others, such as the one regarding marital rape,
were not considered. In response to the judicial committee's recommendation to
criminalize marital rape, a Parliamentary Standing Committee responded that
doing this would put the entire family system under great stress.
Since then, public figures have reaffirmed the idea that penalizing marital rape
will "destroy marriages" and create "absolute anarchy in families." These
arguments have obvious roots in the ancient idea that marriage makes a woman her
husband's sexual property and "pleasing" him whenever he desires is one of the
many duties that come with being a wife.
The Domestic Violence Act, of 2005 hints at marital rape by the mention of
sexual abuse in a live-in or marriage relationship but there is no provision for
initiating criminal proceedings against the abuser as the act provides only
In Sakshi v. Union of India and Ors
(2004), Sakshi, an NGO focusing on
violence against women, petitioned the Supreme Court of India to declare that
"rape" under India's Criminal Rape Law Section 375 includes all forms of
forcible penetration. The petitioner also raised the question that if forced
physical violence with a wife is considered a punishable offence then why isn't
forced sexual intercourse recognized as one too? The petitioner also raised the
question that if forced physical violence with a wife is considered a punishable
offence then why isn't forced sexual intercourse recognized as one too? The
court upheld the existing form of definition and refused to alter Section
In the case of Independent thought v. UOI & ANR
. (2017), a child rights
organization known as Independent Thought, has filed a writ petition in the
public interest before the Supreme Court, challenging the constitutionality of
Exception 2 to Section 375 of the IPC which decriminalized forced sexual
intercourse by a husband with his wife between the age bracket of fifteen to
eighteen years. The focus of the petition was to seek clarification and
harmonization of Exception 2 with existing laws on child marriage under IPC
where the age of consent for sexual intercourse was 18 years.
The Court took note of this anomaly and deemed it necessary to read Exception 2
as saying that sexual intercourse with a wife above 18 years of age was not
rape. The Court also discussed the right to bodily integrity and sexual anatomy
in the context of privacy by citing several cases but avoided a detailed
overlook of the idea as it would have "wider ramifications on the legality of
marital rape as a whole." It refrained from discussing the sexual assault of
adult women in a marital framework, stating that it would lead to adjudication
on the legality of marital rape beyond the age factor.
Justice J. B. Pardiwala in the case of Nimeshbhai Bharatbhai Desai Vs. The
state of Gujarat
 stated that "a wife is not a chattel and a husband
having sexual intercourse with his wife is not merely using a property, he is
fulfilling a marital duty with a human being with dignity equal to that he
accords himself. He cannot be permitted to violate this dignity by coercing his
wife to engage in a sexual act without her free consent." 
In the March of 2022, the Karnataka High court noted that the "institution of
marriage does not confer, cannot confer and in my considered view, should not be
construed to confer, any special male privilege or a license for unleashing of a
brutal beast," condemning the fact that marital rape continues to be legal in
India even in 2022. Justice M. Nagaprasana who presided over the present matter,
said, "no exemption in law can be so absolute that it becomes a license for the
commission of a crime against society."
The court was ruling on the petition of a man accused of raping and assaulting
his wife, harassing her for money, terminating her fetus through forced sexual
intercourse, and sexually harassing their minor daughter. The accused had
pleaded with the court to quash the charges against him on the argument of
marital rape immunity in India. Consequently, the court dismissed his petition,
stating that the wife's allegations "would send a chilling effect on any human
reading the contents of it."
"The Constitution does not in any sense depict the woman to be subordinate to a
man […] Under the Constitution, the rights are equal; protection is also equal."
Justice Nagaprasanna further noted. Criticizing the clear lack of equality that
trickles down into the county's law-making process and by extension, to the
society, he added, "a woman being a woman is given certain status; a woman being
a wife is given a different status. Similarly, a man being a man is punished for
his acts; a man being a husband is exempted from his acts. It is this inequality
that destroys the soul of the Constitution which is [the] Right to Equality."
The judgement garnered praise but did not strike down the exception of marital
rape immunity as in doing so would be "the prerogative of the legislature."
"It's a nice liberal moment […] The result is laudable. But the order is
unsustainable," Rebecca John, a senior advocate, opined on the present judgment.
She stated that "so long as an absolute exception exists, till the time it is
struck down either through a constitutional court or a legislative amendment, a
judge can't say I'm disregarding the absolute exception."
The first petition to penalize marital rape was filed in the Delhi High Court in
2015 by an NGO called RTI Foundation, All India Democratic Women's Association,
and a spousal rape victim. In 2017, the centre had filed an affidavit, in this
case, saying that criminalizing marital rape "may destabilize the institution of
marriage" and become a potential tool for harassing husbands.
Hearings for the matters began in January 2022. The Centre filed an additional
affidavit in the case, saying that it can assist the High Court only after
consulting all stakeholders, including the state governments. "Absence of any
such consultative process by the executive/legislature may result in some
injustice to one section of the other," the Centre stated. Finally, in May 2022,
the Delhi High Court took seven years to hear petitions challenging the marital
rape exception only to come up with a split verdict, paving the way for the
matter to be adjudicated by the Supreme Court.
The petitioners argued on the aspect of the constitutionality of the exception
in as much as the tests prescribed under Article 14 and Article 21 of the
Constitution of India are concerned. They argued that the act of non-consensual
sexual intercourse or rape is abhorrent and inherently violative of the
fundamental right to life and liberty of a woman under Article 21. It was
further argued that the classification of the right to prosecute a man based on
marriage is unreasonable as it offends Article 14 of the Constitution.
It was further submitted that availability of other provisions in various
legislations including Sections 498A, 304b of IPC, Domestic Violence Act, and
other civil remedies, are insufficient to deal with the offence of rape under
Section 375, in respect of a wife alleging rape by her husband, as there is no
express point of commonality between the said provisions. It was argued that
while certain elements of the base offence may exist, every offence must be
In his verdict, Justice Hari Shankar stated that "what distinguishes the
relationship of wife and husband, from all other relationships of woman and man,
is the carrying, with the relationship, as one of its inexorable incidents, of a
legitimate expectation of sex."
"Sex between a wife and husband, whether the petitioners seek to acknowledge it
or not, is sacred," the judge stated.
"Introducing, into the marital relationship, the possibility of the husband
being regarded as the wife's rapist, if he has, on one or more occasions, sex
with her without her consent would, in my view, be completely antithetical to
the very institution of marriage, as understood in this country, both in fact
and in law," he stated.
The primary question that arises here is whether protecting the institution of
marriage is more important than protecting a person's right to bodily integrity.
Justice Hari Shankar held Exception 2 to be "eminently in the public interest."
He said that a husband having sex with an unwilling wife cannot be "equated with
the act of ravishing by a stranger." But does this "sacred" nature of the
relationship between them justify non-consensual sex?
On the other hand, Justice Rajiv Shakdher in his verdict struck down the
exception and stated the exception in question is "steeped in patriarchy and
misogyny" and the "classification, in my opinion, is unreasonable and manifestly
arbitrary as it seems to convey that forced sex outside marriage is 'real rape'
and that the same act within marriage is anything else but rape."
"The right to withdraw consent at any given point in time forms the core of the
woman's right to life and liberty which encompasses her right to protect her
physical and mental being," Justice Shakdher said, calling for a change in the
dated provision. "While marital rape leaves physical scars, it inflicts much
deeper scars on the psyche of the victim which remain with her years after the
offence has occurred," the judge further noted.
The Delhi Government argued that the exception to Section 375 of IPC about
non-criminalization of marital rape does not leave a married woman remediless
under forced sexual intercourse by her husband. The advocate from the government
submitted that the exception does not compel a wife to have sexual intercourse
with the husband and that the remedy of divorce, including other remedies under
criminal law, is available to her in such situations.
Most recently, in the January of 2022, a curious hashtag called #MarriageStrike
had been trending on the public platform Twitter for a couple of days as a
response to the Delhi High Court's decision of hearing pleas to criminalize
marital rape on the grounds of it violating Article 14 and Article 21 of the
Constitution. On Twitter, the debate had become a 'feminist' versus 'save men'
The tweets in support of the 'strike' argued about how the criminalization of
marital rape will increase the possibility of fake cases and put men in a
disadvantaged position. According to social media insights provided by the
online tool Talkwalker app, between 18 to 20 January (till noon), more than 66.8
thousand tweets constituted of the hashtag #MarriageStrike. This is one of
the many incidents that give an idea of how the Indian public, predominantly
men, views marital rape: a threat to the patriarchal aspects of marriage deeply
entrenched in our society.
These men would prefer boycotting the institution of marriage but would not
stand having their partner a right to freely consent to whatever sexual activity
they engage in. Men trending the hashtag said that they will not marry at all if
more 'power' is given to women in marital relationships. The 'power' in question
is a woman's right to say no to forced sexual intercourse. The prime fear is
that Indian women would misuse this 'power' to falsely implicate innocent men.
This idea of women using laws meant to protect themselves against unfair
treatment is often termed "misuse." For the most part, this idea misinterprets
the debate around marital rape in this case in presenting it as a "men versus
women" issue where women are out to get men and strip them of their "rights,"
rather than a rights-based issue.
One of the arguments that were put forward by the petitioner in the RTI
Foundation v. Union of India case
"The case before the court is about the moral right of a married woman to refuse
unwanted forcible sexual intercourse and it is about respecting the right of a
wife to say no and recognizing that marriage is no longer a universal license to
ignore consent." And "such an act will continue to remain condoned until it is
explicitly declared an offence under the law."
Mindless twitter discourses aside, here are the facts: by comparing National
Family Health Survey and the National Crime Records Bureau, the Mint estimated
that 99.1% of sexual violence stays unreported, and in most such instances the
perpetrator is the husband of the victim. And yet, India remains one of the
only 36 countries that have not criminalized marital rape, while also being
one of the signatories to the UN Declaration on the Elimination of Violence
against Women which clearly defines marital rape as violence against women.
Politicians and public figures have been conveniently citing Indian culture to
justify marital rape immunity and inaction towards progressive changes in an
inherently patriarchal system. In 2016, in an answer to the question regarding
the criminalization of marital rape, the then Minister of Women and Child
Development Maneka Gandhi responded:
"It is considered that the concept of marital rape, as understood
internationally, cannot be suitably applied in the Indian context due to various
factors like level of education/illiteracy, poverty, myriad social customs and
values, religious beliefs, the mindset of the society to treat the marriage as a
Interestingly, this response stood in complete contrast with her initial stance
when she observed that marital rape was about power and subjugation.
Nevertheless, her response as state authority has a clear similarity to the
consensus that has been formed by the general public and its representatives
owing to the status of marital rape in India today. In one of the most recent
instances, the Union Minister of Women and Children's Development Smriti Irani
told the Rajya Sabha that to condemn every man in this country as a rapist and
every marriage as violent is not advisable, in response to a question on whether
the Union Government had taken any position on criminalizing marital rape.
The government official failed to elaborate on the subject since it was under
judicial hearing at the time. Meanwhile, BJP Member of Parliament Sushil Modi
said in the Upper House that criminalizing marital rape will end the institution
of marriage. This begs the question: what does it entail when publicly
elected officials responsible for women's welfare in the country make statements
devoid of nuance and complexity?
Much like Irani's, the arguments given by the government have been in service of
"protection of the institution of marriage" and/or preventing the "misuse" of
gender-oriented laws. To quote the central government: the criminalization of
marital rape "could open the floodgates of false cases being made with ulterior
motives" and would be unpragmatic for a country ridden with high levels of
illiteracy and age-old cultural norms.
Naturally, to Irani's statement, a deluge of supportive responses came along the
lines of: "this marital rape propaganda raked up by leftist feminists in the
name of women's safety is a well-planned desperate attempt to demolish the
institution of marriage" or how it calls out the misuse of "gender-biased laws."
Unfortunately, it seems to go amiss for some politicians and the public that the
petition is against a license given to husbands to rape wives- an exception to
the law which some husbands are wildly misusing too.
Marital rape has severe and long-lasting consequences for the victim as they are
stuck in a marriage where there is no respect, no love, and no dignity.
According to certain sections of society, marriage is a sacred institution, and
bringing such a law will lead to a breakdown of marriages. But does that
sanctity even remain when a husband forces himself on his wife? Does this
sanctity not get lost the moment the wife's bodily integrity gets violated?
Exception 2 of Section 375 forms two categories of women based on their marital
status, prioritizing one unmarried woman in protecting them from rape and
turning a blind eye to the married ones, which is a direct contradiction to
every Indian citizen being guaranteed equal protection of laws. The Indian
Constitution guarantees equality under Article 14, but the marital law exception
discriminates against females who have been raped by their husbands by denying
them equal protection from rape and sexual harassment.
Exception 2 is also a violation of Article 21 of the Constitution which states:
"no person shall be denied of his life and personal liberty except according to
the procedure established by law." Over the past years, as evolving contexts
bring new challenges to citizens' fundamental liberties, the Supreme Court has
often interpreted Article 21 to extend beyond the literal guarantee to life and
liberty and include the rights to privacy, health, safe living conditions,
dignity, and safe environment among others.
For instance, in Suchita Srivastava v. Chandigarh Administration
Supreme Court stated that the right to make choices about sexual activity is
within the scope of rights to personal liberty, privacy, dignity, and bodily
integrity under Article 21 of the Constitution.
Time and time again, patriarchal values have been constantly used to violate
constitutional core values. The public needs to understand that however "sacred"
the cultural institution of marriage is, it cannot become a license of sorts to
violate inherent bodily rights. The understanding of bodily autonomy needs to be
kept above the understanding of family. 
The toughest argument in terms of legal precedents can be found in the case
Justice K.S. Puttuswamy (Retd.) v. Union of India
, in which the Supreme
Court identified the right to privacy as a fundamental right and clearly stated
that it includes "decisional privacy reflected by an ability to make intimate
decisions primarily consisting of one's sexual or procreative nature and
decisions in respect of intimate relations."
Eliminating this exemption for marital rape will make women safer from their
violent husbands, enable them to get the recovery support they need, and further
allow them to protect themselves from domestic abuse and sexual assault. Indian
women should be treated equally, and anyone-including a spouse-should not be
allowed to violate a person's fundamental rights.
Regardless of the abuser's identity or the victim's age, rape is rape. A woman
who is raped by a stranger lives with the trauma of a horrible violation; a
woman who is raped by her husband lives with her rapist. Even after 75 years of
independence, the British-inherited criminal laws that govern our nation have
remained mostly unchanged, with a few minor adjustments here and there.
However, English law has been updated, and marital rape was made a crime back in
1991. The Indian government, on the other hand, has been silent on this matter
and has allowed itself to be swayed by the outmoded patriarchal norms that are
firmly ingrained in the culture.
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