Introduction
Exception 2 to Section 375 of the Indian Penal Code, 1860 — now retained in a modified form under Section 63 of the Bharatiya Nyaya Sanhita, 2023 — provides that sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, does not constitute rape. This provision, commonly referred to as the “marital rape exception,” has long been one of the most contested relics of colonial criminal law in India. It codifies a legal fiction: that a woman, upon marriage, grants irrevocable consent to sexual intercourse with her husband.
In an era where the Supreme Court of India has recognised the right to privacy, bodily autonomy, and dignity as fundamental rights under Article 21 of the Constitution, the continued existence of this exception is not merely an anachronism — it is a constitutional anomaly. This article examines the historical origins of the exception, analyses key judicial pronouncements, and argues for its unconditional abolition.
Historical Background and the Hale Doctrine
The marital rape exception traces its origins to the writings of Sir Matthew Hale, Chief Justice of England in the 17th century, who stated in his work Historia Placitorum Coronae (1736) that a husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract. This statement — made without any legal authority or judicial precedent — was uncritically transplanted into colonial Indian law through the Indian Penal Code drafted by Lord Macaulay in 1860.
The doctrine rests on two deeply problematic assumptions: first, that a wife is the property of her husband; and second, that marriage constitutes perpetual and irrevocable consent to sexual intercourse. Both premises are fundamentally incompatible with contemporary constitutional values of equality, dignity, and autonomy. Notably, England itself abolished the marital rape exception in R v R [1991] 4 All ER 481, where the House of Lords held that a rapist remains a rapist regardless of his relationship with the victim.
The Legal Framework in India
The IPC and the Bharatiya Nyaya Sanhita, 2023
Section 375 of the IPC defined rape and provided, by way of exception, that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. The Criminal Law (Amendment) Act, 2013, passed in the aftermath of the Nirbhaya case, raised the age of the wife from fifteen to eighteen years. However, it left the marital rape exception substantively intact — a glaring omission that drew sharp criticism from women’s rights advocates and legal scholars alike.
The Bharatiya Nyaya Sanhita, 2023, which replaced the IPC, similarly retains the exception under Section 63. Despite being an opportunity to break with colonial-era thinking, Parliament chose to preserve a provision that continues to deny married women equal protection under the criminal law. The exception thus survives into independent India’s new criminal code a troubling continuity.
The Supreme Court’s Intervention on Child Marriage
In Independent Thought v. Union of India, (2017) 10 SCC 800, the Supreme Court struck down the part of the marital rape exception that allowed a husband to have sexual intercourse with his wife who was between fifteen and eighteen years of age. The Court read down Exception 2 to Section 375 IPC to exclude girls below eighteen years of age, holding that it was arbitrary, discriminatory, and violated Articles 14, 15, and 21 of the Constitution. While this was a landmark step, the Court expressly declined to rule on the broader question of marital rape of adult women, leaving that issue unresolved.
The Constitutional Challenge
Violation of Article 14: Right to Equality
Article 14 of the Constitution guarantees equality before the law and equal protection of the laws. The marital rape exception creates a classification between married and unmarried women with respect to the availability of criminal law protection from sexual violence. This classification has no rational nexus to any legitimate state objective. Marriage does not and cannot extinguish a woman’s right to say no. The exception, therefore, fails the test of reasonable classification and is manifestly arbitrary within the meaning of the expanded doctrine laid down in Shayara Bano v. Union of India, (2017) 9 SCC 1.
Violation of Article 21: Right to Life and Personal Liberty
In Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, a nine-judge bench of the Supreme Court unanimously held that the right to privacy is a fundamental right under Article 21. The judgment explicitly recognised that privacy encompasses bodily integrity and sexual autonomy. A law that permits a husband to forcibly have sexual intercourse with his wife without her consent directly violates her bodily integrity and sexual autonomy — rights now constitutionally guaranteed.
Furthermore, the right to live with dignity — a core component of Article 21 as articulated in Francis Coralie Mullin v. Union Territory of Delhi, (1981) 1 SCC 608 — is gravely undermined when the law provides no remedy to a woman subjected to sexual violence within marriage. Dignity cannot coexist with a legal regime that treats a wife’s body as the husband’s property.
The Broader Fundamental Rights Framework
The exception also implicates Article 19(1)(a) insofar as it silences survivors a woman whose complaint of marital rape is legally unrecognised cannot meaningfully exercise her right to seek redress. Additionally, Article 15(3), which permits special provisions for women, has been interpreted to mandate affirmative protection rather than to excuse differential treatment that harms women. A provision that effectively decriminalises sexual violence against a wife cannot be justified under any provision of Part III of the Constitution.
Judicial Developments
The Delhi High Court Split Verdict (2022)
In RIT Foundation v. Union of India (2022), a division bench of the Delhi High Court delivered a split verdict on the constitutional validity of the marital rape exception. Justice Rajiv Shakdher struck down the exception, holding it to be violative of Articles 14, 19, and 21. His Lordship reasoned that a woman does not surrender her sexual autonomy upon marriage and that a husband’s sexual access cannot be presumed from the institution of marriage alone.
Justice C. Hari Shankar, however, upheld the exception, reasoning that the legislature had consciously retained it and that marriage is a unique social institution warranting special treatment under criminal law. He further held that a wife’s implied consent to sex within marriage was a legitimate legislative assumption. The split verdict resulted in a reference to the Supreme Court, where the matter remains pending. The divergence of opinion within a single bench vividly illustrates the depth of the constitutional debate surrounding this provision.
The Matter Before the Supreme Court
The Supreme Court is currently seized of the constitutional challenge. The Union of India has taken the position that criminalising marital rape may destabilise the institution of marriage and that the matter is best left to the legislature. However, the Court’s own jurisprudence on bodily autonomy, dignity, and equality — particularly post-Puttaswamy — makes it difficult to sustain that position. The Court’s eventual ruling will be one of the most consequential decisions on gender justice in Indian constitutional history.
Comparative Perspective
India stands in a shrinking minority of nations that still permit the marital rape exception. Over 150 countries, including the United Kingdom, the United States, Canada, Australia, South Africa, and Nepal, have criminalised marital rape. Nepal’s Supreme Court struck down its marital rape exception in 2002, and South Africa’s post-apartheid Constitution explicitly prohibited it. The argument that criminalising marital rape is culturally alien to India is belied by the fact that the exception itself was imposed through colonial legislation — it is the exception, not Indian tradition, that is foreign.
Addressing Counter-Arguments
The “Institution of Marriage” Argument
The most frequently cited objection is that criminalising marital rape will undermine the institution of marriage and be misused by wives to harass husbands. This argument conflates the protection of marriage as a social institution with the protection of a husband’s impunity to commit sexual violence. Legitimate marriages are not built on the absence of criminal sanction for rape. The concern about misuse, while valid in the abstract, cannot justify the blanket denial of legal protection to all married women — the same logic, if applied consistently, would justify decriminalising domestic violence, which Parliament has rightly refused to do.
The “Legislative Domain” Argument
It has also been argued that the criminalisation of marital rape is a matter for the legislature, not the judiciary. While it is true that criminal law reform is primarily a legislative function, the judiciary has a constitutional obligation to strike down legislation that violates fundamental rights. If a provision is unconstitutional — as the marital rape exception arguably is — the Court cannot abdicate its duty merely because the legislature has chosen to retain it. The Constitution is supreme, and parliamentary inaction cannot insulate a provision from constitutional scrutiny.
Conclusion
The marital rape exception is a constitutional relic that has outlived any possible justification. It treats married women as second-class citizens under the criminal law, denies them the bodily autonomy and dignity guaranteed by the Constitution, and perpetuates a feudal notion of marriage as a transfer of property. The Supreme Court’s jurisprudence on privacy, equality, and dignity — culminating in the Puttaswamy judgment — has already laid the constitutional groundwork for striking it down.
Abolishing the exception will not destroy marriage — it will make marriages safer for women. It will signal that the law treats wives as persons with rights, not objects without them. Legislative reform, if not judicial intervention, is urgently overdue. The marital bed cannot be a space where the Constitution ceases to apply.
