Marital rape refers to non-consensual sexual intercourse by a husband with his wife. Under Indian criminal law, Section 375 IPC, which defines rape, contains Exception 2, stating that sexual intercourse by a man with his own wife, provided she is not under 18 years of age, is not considered rape. This statutory exception creates a legal immunity for husbands, implying that consent is presumed within marriage. However, the concept of marital rape is widely recognised internationally and viewed as a violation of bodily autonomy and human dignity. Courts and legal scholars increasingly argue that marriage does not create irrevocable consent. The legislative exception has faced criticism for being inconsistent with constitutional guarantees of equality and the right to personal liberty under Articles 14 and 21. Thus, while marital rape is morally and socially condemned, Indian law still does not criminalize it fully for adult married women.
Essential Concerns and Evolving Jurisprudence
Although marital rape is not recognised as an offence for wives aged 18 or above, Indian courts have acknowledged that forced sexual acts within marriage may constitute cruelty under Section 498A IPC, grounds for divorce under family law statutes, or sexual violence under the Protection of Women from Domestic Violence Act, 2005. The judiciary has repeatedly emphasized that marriage does not imply permanent consent and that bodily integrity remains intact even after marriage. Several High Courts have questioned the constitutional validity of Exception 2 to Section 375, suggesting that it undermines women’s autonomy. In recent years, public interest litigations have pushed for removing the exception, aligning Indian law with global human rights standards. While no statutory amendment has yet been enacted for criminalisation, the legal debate highlights the tension between traditional marital norms and evolving constitutional rights.
Distinction and Policy Implications
The legal distinction between rape and marital sexual assault is rooted in historical notions that treated wives as the property of husbands, a rationale that modern law and psychology reject. Critics argue that the exception violates principles of consent, equality, and dignity. Supporters of the exception often argue that criminalizing marital rape may disrupt the institution of marriage; however, this view is increasingly rejected because marital relationships also require consent, respect, and autonomy. Internationally, more than 100 countries recognize marital rape as a criminal offence. Policy reform in India is gradually moving in that direction, emphasizing the need to protect married women from sexual violence. The challenge lies in balancing marital privacy with individual rights, ensuring that the law does not grant immunity to violence disguised as marital privilege.
Real-Time Example
Consider a situation where a woman, Meera, repeatedly informs her husband that she is unwell, emotionally distressed, and unwilling to engage in sexual relations. Despite this, her husband forces himself on her regularly, ignoring her verbal protests and physical resistance. Meera suffers anxiety, physical injuries, and emotional trauma. Under current Indian law, Meera cannot file a rape charge because of Exception 2 to Section 375 IPC. However, she can seek remedies under Section 498A IPC for cruelty and file a case under the Domestic Violence Act for sexual abuse. Courts may grant protection orders, residence rights, and compensation. This example highlights how the absence of marital rape criminalisation creates a legal gap, forcing survivors to rely on alternative provisions that only partially address the harm.
Mnemonic to Remember Key Aspects of Marital Rape Debate
A useful mnemonic is “C-U-R-E: Consent, Unconstitutional, Rights, Exception.”
- C – Consent: Marriage does not equal lifelong consent.
- U – Unconstitutional concerns: Exception 2 is challenged for violating Articles 14 and 21.
- R – Rights of women: Bodily autonomy and dignity remain after marriage.
- E – Exception 2: Legal immunity under Section 375 IPC is the central issue.
This mnemonic helps recall the core legal and constitutional issues surrounding marital rape in India, making it easier for students and exam aspirants to organise their understanding of the topic.
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