Criminalisation of Marital Rape – The Road Ahead

Marital rape is one of the most controversial and sensitive issues in Indian criminal law. It refers to sexual intercourse forced by a husband on his wife without her consent. While rape is criminalized under Section 375 of the Indian Penal Code, Exception 2 to this provision states that sexual intercourse by a man with his wife, if she is not under fifteen years of age, does not amount to rape. This marital rape exception effectively grants immunity to husbands, denying recognition to the principle that consent is the cornerstone of sexual autonomy. Although the age of consent has since been read as eighteen through judicial interpretation in Independent Thought v. Union of India (2017), the marital rape exception otherwise continues to exist, keeping India among the few democracies where marital rape is not a punishable offence.

The roots of this exception lie in colonial notions that treated marriage as granting irrevocable sexual consent by the wife, effectively reducing her to the property of her husband. Such a view stands in direct contradiction to constitutional guarantees under Articles 14, 15, and 21, which ensure equality, dignity, and personal liberty. The Supreme Court has, in various contexts, emphasized the importance of individual autonomy and bodily integrity. In Justice K.S. Puttaswamy v. Union of India (2017), privacy was recognized as a fundamental right, including decisional autonomy over intimate matters. In Joseph Shine v. Union of India (2018), adultery was decriminalized, with the Court rejecting patriarchal notions of women as property. These rulings highlight the incompatibility of the marital rape exception with constitutional morality.

Judicial attempts to address marital rape have been cautious. In Independent Thought, the Supreme Court criminalized marital rape of wives between fifteen and eighteen years of age, holding that the exception violated the rights of minor girls. However, the Court left open the larger question of adult women, deferring it to the legislature. More recently, in 2022, the Delhi High Court delivered a split verdict in petitions challenging the marital rape exception. While Justice Shakdher struck down the exception as unconstitutional, Justice Hari Shankar upheld it, leaving the matter unresolved and currently pending before the Supreme Court. This judicial hesitation reflects the tension between constitutional rights and political sensitivities surrounding family and marriage.

The arguments for criminalizing marital rape are compelling. First, marriage cannot be a license to violate bodily integrity. Consent must remain central to all sexual relationships, including marital ones. Second, non-criminalization perpetuates domestic violence and gender inequality, leaving women vulnerable to abuse with no effective legal remedy. Third, international human rights law, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), obliges India to criminalize marital rape. More than 150 countries across the world already treat marital rape as a criminal offence, and India’s continued exception undermines its global commitments.

Opponents of criminalization argue that it may destabilize the institution of marriage, lead to misuse of law, and create evidentiary difficulties in distinguishing consensual marital sex from forced intercourse. However, these concerns are not insurmountable. Misuse is a risk with any law, but it cannot be a reason to deny justice to genuine victims. Similarly, evidentiary challenges are common in rape prosecutions, but they are addressed through judicial processes. The greater concern lies in entrenched patriarchal attitudes and the belief that marriage implies unconditional sexual access, a notion fundamentally at odds with the principles of equality and dignity.

The road ahead requires a multi-pronged approach. First, the marital rape exception in Section 375 IPC must be removed, bringing marriage within the purview of rape law. This would align Indian law with constitutional guarantees and international human rights standards. Second, alongside criminalization, mechanisms of support for survivors must be strengthened, including accessible complaint systems, counseling, shelter, and financial aid. Third, awareness and sensitization are crucial to change societal attitudes that normalize marital sexual violence. The judiciary, legislature, and civil society must work together to ensure that reform is not seen as an attack on marriage but as a step towards equality within it.

In conclusion, the non-criminalization of marital rape is an anomaly in Indian law that denies women equal protection of the law and violates their fundamental rights. While the issue remains unresolved in courts and legislatures, constitutional morality and international standards strongly point towards reform. The road ahead lies not only in amending Section 375 but also in creating an environment where consent is respected within marriage, and survivors are supported in seeking justice. The recognition of marital rape as a crime is therefore not just a legal reform but a necessary step toward gender justice and the fulfillment of India’s constitutional promise of dignity, equality, and liberty.