top of page
  • Paras Sharma

The necessity for Criminalization of Marital Rape in India

Written by: Sudhanshu Pathak, Student, Bharati Vidhyapeeth Deemed to be University, Pune


India has completed their 73 Years of Independence but still women neither completely independent nor they can enjoy their freedom with full dignity as man does. We have a lot of provisions and laws in written with regard of protection for women from any type of violence includes physical, domestic, emotional, cruelty and sexual harassment. These protection is still not enough to cover all the challenges faced by women daily and offer them an appropriate relief. Among all these, marital rape is one of most dangerous and heinous crime which is even not recognized as a crime in India. India remains one of the 36 countries where “a husband forced his wife for sexual intercourse against her consent” not recognized as a criminal offence.[1]

The definition of Rape which is criminal offence has been codified under Section 375 of Indian Penal Code which states that “a man commits rape if he has a sexual intercourse with a woman without her consent or if she is minor.”[2] However, according to exception 2 to section 375 of IPC which talks about that “sexual intercourse by a man with his wife, not being under 15 years of age, is not rape.”[3] In 2018, SC in one of landmark judgment has increased the age limit to 18 from 15 years for conviction of husband in case of marital rape.[4] But court was silent on the issue of women whose age above 18 years of age. Exception 2 categorizes the status of women into two class i.e. married and unmarried women. Due to this classification on the status of marriage, it violates the equality and privacy of the women enshrined under Article 14 & 21 of the Indian Constitution. This article critically analyze constitutionality of exception 2 and other factors that prevents the marital rape to become a criminal offence.

The obstacle in the way of criminalizing marital rape is none other than the society itself. Indian society considered marriage is an important aspect of life to continue their generation. So, how women could file a case against husband, if marital rape gets penalized? This is an excuses provided by the society in terms to protect the ‘institution of marriage’. They presumed that after having marriage, she hands over never-ending, continuous sexual consent to her husband is a deeply embedded in our society.

Patriarchal framework that administers Indian families has constantly considered women as unimportant property of her significant other or guardian. So rape considered as a theft of the women and wrong against spouse. Rape is not savagery against the ladies but also infringement of freedom of basic human rights. There is a belief system revolving around the society that ‘institution of marriage’, cultural values cannot be compromised despite knowing that it is women’s bodily integrity and dignity. Even in 2019 former Chief justice of India said that marital rape should be made a crime in India because “it will create anarchy in families and our country sustaining itself because of the family platform which upholds family values”.[5]

Being marital rape not criminalized in India it encourages the husband to have sexual intercourse with her wife without her consent because they know it is not penalized by law. This sexual violence not only against the women but also it against humanity itself. Rape is a rape irrespective of who the perpetrator is and age of the survivor. This form of sexual violence strip down the women’s dignity, chastity, privacy and consider women as man’s property. Exception 2 is discriminatory because it denies equal protection of law for women guaranteed under Article 14. This article states that “State shall not deny any person equality before law or equal protection of law.”[6] It permits reasonable classification but forbids class legislation.[7]

In the case of Budhan Choudhary v. State of Bihar & State of West Bengal v. Anwar Ali Sarkar[8] the Supreme Court held that any classification should stand on the test of reasonableness and classification only passed when there is rational nexus between the object to be achieved.

By the aforementioned cases, we can conclude that exception 2 frustrates the purpose of section 375 to protect the women and punishes those who engages in the inhumanity of rape.

Every human being on this earth deserves a decent and meaningful life with dignity. In Maneka Gandhi v. Union of India[9] SC held that right to life includes right to life with dignity .But exception 2 again violates of Article 21 of the Indian constitution which talks about “Right to life and personal liberty”[10]. Throughout various earlier judgments, the Apex court has interpreted this clause and tried to extend the scope beyond the literal guarantee to life and liberty. The court has observed that right to life includes privacy, self-determination, safe environment, and safe living conditions among others.

Article 21 has a wider scope and interpretation which not only restricted to privacy or liberty of women but also give full space to abstain herself from giving consent for sexual intercourse. In the State of Karnataka v. Krishnappa[11] the Supreme Court observed that non-consensual intercourse amounts to physical and sexual violence. In the same judgment the court noted that apart of dehumanizing act “the sexual violence is an unlawful intrusion of right to privacy and sanctity of female.”

In Suchita Srivastava v. Chandigarh Administration[12] the Apex court held that right to make choices related to sexual activity stands equally with right to life and personal liberty, dignity, bodily integrity enshrined under article 21 of the Indian constitution. In Lilu v. State of Haryana[13] the court stressed on right of rape survivors to privacy, dignity, physical and mental integrity.

In case Justice K.S. Puttuswamy (Retd.) v. Union of India[14] the Supreme Court held that right to privacy is a fundamental right and further observed that 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”. Also, court said that forced sexual intercourse is a violation of that fundamental right[15].

The above ruling does not create any inequality between married and unmarried women and there is no such ruling which states that individual’s right to privacy lost by marital association. Thus, Supreme Court held that abstain from sexual activity is the individual’s choice irrespective of their marital status, and it is fundamental right conferred under article 21 of the Indian constitution. Hence, it is crystal clear that exception 2 to section 375 of IPC which denies right to life with dignity to women violates the fundamental right under Article 21.

It is important to understand gap in marital rape law in India. It is of paramount importance to understand that it’s a major lacuna in criminal law at present defeating the constitutional provisions and thus women getting devoid of his fundamental rights. We have been studied above that how exception 2 of section 375 are violating the fundamental rights under article 14 and 21 of the constitution. The legal recourse which women enjoys are under Prevention of domestic violence act 2005[16] against sexual or physical violence but this act is civil in nature and marital rape is criminal offence.

Ensuring marital rape is criminalized would make justice accessible for all women, irrespective of marital status. It could also send a good signal that women always has the right to choose whether and with whom she has sexual relations.

Thus, we proposes to remove this exception 2 and covered all type of rape including marital rape under section 375 of IPC and provided fundamental rights to women.


[1] India today, Marital rape in India: 36 countries where marital rape is not a crime (Mar 12, 2016 16:06 IST) [2] Indian Penal Code § 375, No. 45 of 1860, India Code. [3] Ibid. [4] Independent Thought v. Union of India, (2013) 382 SCC (2017) (India). [5] By Pallavi Prasad, Why It’s Still Legal for Indian Men to Rape Their Wives (Jan 20, 2020) [6] India Const. art.14 [7] Rajasthan state Road Transport Corporation v. Danish Khan,( 2020) 2 CTC 728 (India), State of Mysore & Another v. P. Narasing Rao, 1968 SCR (1) 407 (India). [8] Budhan Choudhary v. State of Bihar, A.I.R. (1955) S.C. 191 (India.), State of West Bengal v. Anwar Ali Sarkar, A.I.R. (1952) S.C. 75 (India). [9] Maneka Gandhi v. Union of India, 1978 SCR (2) 621 (India). [10] India Const. art.21. [11] The State of Karnataka v. Krishnappa, (2000) 4 SCC 75 (India). [12] Suchita Srivastava v. Chandigarh Administration, (2008) 14 SCR 989 (India). [13] Lilu v. State of Haryana, (2013) 14 SCC 643 (India). [14] Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161 (India). [15] as “Right to abstain” from sexual intercourse is a long recognized principle of Indian Constitutional jurisprudence. [16] Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India); Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, No. 14, Acts of Parliament, 2013 (India).


Opinions expressed in the blogs are the sole responsibility of the author(s) and do not necessarily reflect the views of The L Word Blog.

© Copyrighted Material! Contact the publisher for permissions.
bottom of page