Marital Rape in India: Should the criminal law recognise it? : Author: SHRUTI PANDEY
Under Indian law, a man who forces sexual intercourse upon a woman commits rape, an offence carrying a minimum of ten years' imprisonment. Yet if the woman is his wife, the law largely looks away. Exception 2 to Section 375 of the Indian Penal Code, 1860, carried forward as Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023, provides that sexual intercourse by a man with his own wife, she not being under eighteen years of age, is not rape. Whether criminal law should recognise marital rape is therefore no longer a theoretical debate. It is a constitutional question pending before the Supreme Court, and it demands a principled answer.
ARTICLE
Introduction
Under Indian law, a man who forces sexual intercourse upon a woman commits rape, an offence carrying a minimum of ten years' imprisonment. Yet if the woman is his wife, the law largely looks away. Exception 2 to Section 375 of the Indian Penal Code, 1860, carried forward as Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023, provides that sexual intercourse by a man with his own wife, she not being under eighteen years of age, is not rape. Whether criminal law should recognise marital rape is therefore no longer a theoretical debate. It is a constitutional question pending before the Supreme Court, and it demands a principled answer.
A Colonial Inheritance
The exception did not grow out of Indian tradition. It flows from the doctrine of coverture and from the seventeenth-century assertion of Sir Matthew Hale that, by marriage, a wife gives irrevocable consent to her husband. On this view, a wife was less a person than a possession, and her body was surrendered at the altar. England abandoned this fiction in R v R (1991), and countries such as Canada, South Africa and Nepal have since criminalised marital rape. India, ironically, preserves a rule its colonial author discarded long ago.
The Constitutional Case
The exception struggles to survive constitutional scrutiny. Article 14 permits classification only where it rests on an intelligible differentia bearing a rational nexus with the object of the law. The object of rape law is to punish non-consensual sexual violation, and the harm a woman suffers is identical whether the perpetrator is a stranger or a husband. Marital status has no bearing on the absence of consent.
Article 21 points the same way. In K.S. Puttaswamy v. Union of India (2017), the Supreme Court recognised bodily integrity, dignity and decisional autonomy as facets of privacy. In Joseph Shine v. Union of India (2018), it struck down the adultery law because it treated a wife as her husband's property. Independent Thought v. Union of India (2017) read down the exception for wives aged fifteen to eighteen, and in X v. Principal Secretary (2022) the Court accepted that, for the purposes of the Medical Termination of Pregnancy Rules, rape includes rape by a husband. The exception is thus already eroding from within, leaving an incoherent immunity for husbands of adult women. The Justice J.S. Verma Committee (2013) recommended its deletion, yet Parliament left it untouched.
The Opposing View
Opponents advance several arguments. The Union government has contended that criminalisation could destabilise the institution of marriage, that the offence would be easily misused and hard to prove, and that wives already have remedies under the cruelty provisions and the Protection of Women from Domestic Violence Act, 2005. In the Delhi High Court's split verdict in RIT Foundation v. Union of India (2022), Justice C. Hari Shankar accepted that the marital relationship offers an intelligible differentia and that the matter belongs to the legislature, whereas Justice Rajiv Shakdher held the exception unconstitutional.
Answering the Objections
None of these objections is persuasive. Marriage is a partnership of equals, not a licence for coercion; an institution that survives only by denying a woman's consent does not deserve protection at that price. The claim of misuse proves too much, since dowry laws, cruelty laws and every other serious offence can be misused. The answer is careful investigation and a fair trial, not blanket immunity. Difficulty of proof is an evidentiary problem, and courts routinely decide questions of consent in other intimate settings, including between unmarried partners.
Alternative remedies are also inadequate. Cruelty provisions and the Domestic Violence Act address abuse generally; they do not name, denounce or punish the specific wrong of sexual violation, and they carry lighter consequences and a largely protective, civil character. Finally, the plea of judicial restraint overlooks that, under Article 13, courts must test laws against fundamental rights. Deferring to a Parliament that declines to act leaves women without protection.
The Way Forward
Recognition does not require reckless prosecution. The deletion of the exception can be paired with safeguards: sensitised police, prompt medical and forensic procedures, and sentencing that reflects the facts of each case. The Supreme Court has also been examining whether a husband can be prosecuted while the exception stands, given the protection against retrospective criminal liability in Article 20. That concern counsels prospective, carefully drafted reform, not the continued retention of the immunity.
Conclusion
The criminal law should recognise marital rape. Consent is the essence of the offence, and it cannot be signed away once and for all at the time of marriage. A legal system that promises women equality and dignity cannot simultaneously tell a wife that her refusal ceases to matter at the bedroom door. The Constitution guarantees rights to persons, not to roles. Until the exception is removed, the law will keep shielding a husband's status while ignoring his wife's autonomy.