Marital rape is antithetical to equality and autonomy

The Union government has shown reluctance in criminalizing marital rape, saying that it would destabilize the institution of marriage. (HT_PRINT)
The Union government has shown reluctance in criminalizing marital rape, saying that it would destabilize the institution of marriage. (HT_PRINT)


  • A Madhya Pradesh high court ruling has reignited India’s debate on the need to criminalize marital rape. Sadly, the Bharatiya Nyay Sanhita doesn’t reform the IPC’s exception that keeps it legal. Marital rape being legitimate not only presupposes a woman’s consent but denies her agency.

On 1 May 2024, the Madhya Pradesh high court in Manish Sahu vs State of Madhya Pradesh held that “any sexual intercourse or sexual act by the husband with his wife not below the age of 15 years is not a rape, then under these circumstances, absence of consent of wife for unnatural act loses its importance."

This ruling has reignited the debate on criminalization of marital rape in India. As per Exception 2 of Section 375 of the Indian Penal Code, 1860 (which defines the offence of rape), sexual intercourse or sexual acts by a man with his own wife, the latter not being under 15 years of age, is not rape. The age was raised to 18 for this exception by a decision of the Supreme Court in Independent Thought vs Union of India (2017). 

In other words, the law gives immunity to husbands from the offence of rape in non-consensual sexual acts with their wives. Countries like the UK, US, Australia and South Africa have criminalized marital rape. However, the Bharatiya Nyaya Sanhita, 2023, which will replace the Indian Penal Code (IPC) from July, hasn’t addressed the issue of marital rape, thereby allowing it to remain legal.

In 2021, the Chhattisgarh high court in Dilip Pandey & others vs State of Chhattisgarh observed that “sexual intercourse or any sexual act with wife by the husband would not constitute an offence of rape, even if it was by force or against her wish."

Also read: Our criminal laws must uphold gender justice

On the contrary, the Gujarat high court in Nimeshbhai Bharatbhai Desai vs State of Gujarat (2018) observed that “a woman is no longer the chattel [that] antiquated practices labelled her to be. A husband who has sexual intercourse with his wife is not merely using a property, he is fulfilling a marital consortium with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing her to engage in a sexual act without her full and free consent."

Exception 2 of the IPC’s Section 375, based on the archaic notion that men have control over women’s bodies, presupposes that a woman has provided irrevocable consent to her husband for sexual activity. In doing so, it disregards the individual agency of women, which is inconsistent with the constitutional guarantee of right to life and non-discrimination based on gender. A marital union does not take away a woman’s right over her body.

In 2022, a two-judge bench of the Delhi high court in RIT Foundation vs Union of India missed an opportunity to protect the rights of married women. The court delivered a split verdict on the constitutionality of India’s marital-rape exception.

While striking down the provision, Justice Rajiv Shakdher observed that “modern-day marriage is a relationship of equals." He asserted, “The woman by entering into matrimony does not subjugate or subordinate herself to her spouse or give irrevocable consent to sexual intercourse in all circumstances. 

Consensual sex is at the heart of a healthy and joyful marital relationship. Non-consensual sex in marriage is an antithesis of what matrimony stands for in modern times i.e., the relationship of equals. The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty, which encompasses her right to protect her physical and mental being."

Justice C. Hari Shankar, however, while upholding the constitutionality of the marital-rape exception, held that the court is neither empowered to prescribe punishment nor create a new offence. Essentially, Justice Shankar shifted the onus to the legislature.

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The Justice Verma panel, constituted in 2012 to suggest reforms in rape and sexual assault laws, had recommended the deletion of the marital rape exception. It was of the view that the relationship between the victim and the accused is irrelevant and consent in sexual acts should not be presumed in a marriage. The recommendations were not accepted by Parliament.

In 2018, Member of Parliament Shashi Tharoor introduced a private bill, ‘The Women’s Sexual, Reproductive and Menstrual Rights Bill,’ which aimed to criminalize marital rape. However, the bill lapsed.

The Union government has shown reluctance in criminalizing marital rape, saying that it would destabilize the institution of marriage. The idea of marriage in today’s world is changing, with the focus now on equality and individual rights. The gendered lens through which it was seen is fast being abandoned. Clearly, the institution can be protected while also upholding the bodily autonomy of married women.

The Supreme Court’s observations in X vs The Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi (2022) have helped highlight the flaw in the IPC’s marital-rape exception. The court disregarded the view that “only strangers are guilty of gender-based violence" and acknowledged that “intimate partner violence is a reality and can take the form of rape." Importantly, it held that rape includes marital rape for the purpose of the Medical Termination of Pregnancy Act, 1971.

Also read: A female experience of the law as we know it

A constitutional challenge to the marital-rape exception is pending before the Supreme Court. We await the day when women do not suffer discrimination because of their marital status. We must ask ourselves whether we want a rights-based society whose laws apply equally to all, or a country that upholds outmoded patriarchal norms.

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