Rape exposes the failure of society’s institutions which were established to provide better security to an individual in a society. Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. The lack of consent is the essential element and need not involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse.

 But  What happens when laws provide a safeguard to the culprits and endanger the victims?


(1.) It’s against Indian culture-  Former Chief Justice of India Dipak Misra said that marital rape should not be made a crime in India,  “because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values”.

Some argument is that social customs and religious beliefs, combined with staggering illiteracy create an environment wherein marital rape cannot be criminalized seemingly because people aren’t ready for it.

 In Independent thought vs Union of India, the Court specifically explained that marriage is personal and nothing short of the Indian State criminalizing marriage itself can destroy the institution of marriage. It said if divorce and judicial separation have not destroyed the institution of marriage, criminalizing marital rape certainly can not either.

(2.) Once married, women’s perpetual consent is implied– The idea that once a woman is married, she hands over never-ending, continuous sexual consent to her husband is a deeply embedded one in our society.

(3.) Women will misuse any law against marital rape- In an affidavit submitted to the Delhi High Court, the union government said a law criminalizing marital rape can become an “easy tool to harass the husbands”.


Domestic violence in India is an entrenched problem, and it has only been exacerbated in recent years. About 70 percent of women in India are victims of domestic violence. National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019 report was worrisome but not startling. As per the report, in India, a woman is raped every 16 minutes, and every four minutes, she experiences cruelty at the hands of her in-laws. An analysis of National Family Health Survey (NFHS) 2015-16 data indicates that an estimated 99.1 percent of sexual violence cases go unreported and that the average Indian woman is 17 times more likely to face sexual violence from her husband than from others.

 The definition of rape codified in Section 375 of the Indian penal code, 1860  includes all forms of sexual assault involving nonconsensual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s definition of “rape” and thus immunizes such acts from prosecution. As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations. The Supreme Court of India and various High Courts are currently flooded with writ petitions challenging the constitutionality of this exception, and in a recent landmark judgment, the Supreme Court criminalized unwilling sexual contact with a wife between fifteen and eighteen years of age. This judgment has in turn led to an increase in other writs challenging the constitutionality of Exception 2 as a whole. In light of ongoing litigation, this Article critically analyses the constitutionality of Exception 2.


  • The doctrine of Coverture: Non-Criminalised nature of Marital rape emanates from the British era. Marital rape is largely influenced by and derived from this doctrine of merging the woman’s identity with that of her husband.
    • At the time the IPC was drafted in the 1860s, a married woman was not considered an independent legal entity.
  • The marital exception to the IPC’s definition of rape was drafted on the basis of Victorian patriarchal norms that did not recognize men and women as equals, did not allow married women to own property, and merged the identities of husband and wife under the “Doctrine of Coverture.”
  • Violative of Article 14: Marital rape violates the right to equality enshrined in Article 14 of the Indian constitution.
    • The Exception creates two classes of women based on their marital status and immunizes actions perpetrated by men against their wives.
  • In doing so, the Exception makes possible the victimization of married women for no reason other than their marital status while protecting unmarried women from those same acts.
  • Violative of Article 21: According to creative interpretation by the Supreme Court, rights enshrined in Article 21 include the rights to health, privacy, dignity, safe living conditions, and safe environment, among others.
  • In the State of Karnataka v. Krishnappa, the Supreme Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.
  • In the same judgment, it held that non-consensual sexual intercourse amounts to physical and sexual violence.
  • In the Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.
  • The right to privacy 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.
  • In all these judgments the Supreme Court has recognized the right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental right conferred by Article 21 of the Constitution.
  • Therefore, forced sexual cohabitation is a violation of the fundamental right under article 21.


Today, it has been impeached in more than 100 countries but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized. Our penal laws, handed down from the British, have by and large remained untouched even after  73 years of independence. But English laws have been amended and marital rape was criminalized way back in 1991. 

 In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the  Indian government should criminalize marital rape.


Rape is rape, irrespective of the identity of the perpetrator, and the age of the survivor. A woman who is raped by a stranger lives with a memory of a horrible attack; a woman who is raped by her husband lives with her rapist. A married woman has the same right to control her own body as an unmarried woman. In a recent judgment in Kerala, the high court recognizes ‘Marital Rape a Form of Cruelty, Is Ground to Claim Divorce’. Therefore, it is high time that the legislature should take cognizance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception 2) of IPC.


1.  theswaddle.com

2.  Indian Express

3.  the  Hindu

4.  www.legalservicesindia.com

5.  outlookindia.com

6.  Wikipedia

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Comment (1)

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Feb 2, 2023, 1:10 pm

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