RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

PROJECT- RESEARCH PAPER

CRIMINAL LAW
MARITAL RAPE IN INDIA: A CRITICAL STUDY

SUBMITTED TO: SUBMITTED BY:

MR. ANKIT KAUSHIK MUSKAN JAIN
ASST. PROF. OF CRIMINAL LAW, ROLL NUMBER 22047
RAJIV GANDHI NATIONAL SECTION A
UNIVERSITY OF LAW,
PUNJAB.

1|Page
 ACKNOWLEDGEMENT

This project's success is the result of individuals' continual support and direction, and I would
want to offer my deepest gratitude to Ankit Kaushik Sir, our Criminal Law Professor, who
helped me to accomplish this research with their continuous motivation. Their great advice and
direction were critical in the project and in addressing all of the challenges that developed
throughout the product's development. The library personnel helped me with my project
research by enabling me to utilize their internet databases and journal collections. Finally, I
would want to thank my parents and friends for their continuing assistance and moral support
in enabling me to accomplish this project

2|Page
 TABLE OF CONTENTS

Contents
ACKNOWLEDGEMENT ......................................................................................................... 2

TABLE OF CONTENTS ........................................................................................................... 3

ABSTRACT ............................................................................................................................... 4

INTRODUCTION ..................................................................................................................... 4

MARRIAGE AS A SACRED UNION .................................................................................. 4

HISTORY OF RAPE LAWS IN INDIA .................................. Error! Bookmark not defined.

ARGUMENTS IN FAVOUR OF NOT CRIMINALISING MARITAL RAPE ........................ 6

MISUSE OF THE LAW ........................................................................................................ 6

CONSENT IS ALWAYS THERE .......................................................................................... 7

BURDEN OF PROOF ........................................................................................................... 7

THE BREAKDOWN OF THE INSTITUTION OF MARRIAGE........................................ 8

CONJUGAL RIGHTS ........................................................................................................... 8

GENDER NEUTRALITY ..................................................................................................... 9

FEAR OF LEGAL TERRORISM.......................................................................................... 9

FROM THE LENS OF JUDICIARY ....................................................................................... 10

NIMESHBHAI BHARATBHAI DESAI V. STATE OF GUJARAT, 2018........................................... 10

T. SAREETHA VS T. VENKATA SUBBAIAH, 1983 ........................................................ 11

HARVINDER KAUR V. HARMANDER SINGH CHOWDHARY, 1983........................................... 11

INDEPENDENT THOUGHT V. UNION OF INDIA, 2017 ............................................................. 12

RIT FOUNDATION V. UNION OF INDIA, 2022.......................................................................... 12

WHY MARITAL RAPE SHOULD BE CRIMINALISED ..................................................... 15

ANALYSIS .............................................................................................................................. 17

CONCLUSION ........................................................................................................................ 17

3|Page
 ABSTRACT

Marriage is a legal relationship between a husband and a wife1 but in India, it is more of a
sacred union of a man and a woman. Some rights, like as the freedom to engage in sexual
activity with one another, are thought to come with the solemnity of marriage. In Indian society,
consent, which is one of the most necessary conditions for having sex, becomes less significant
after marriage. This study examines the validity of Section 375 of the Indian Penal Code's
Exception 2. We will talk about whether the exemption to section 375 of the IPC violates
fundamental rights and whether, when judging marital rape as criminal activity, culture has any
bearing on that determination.

INTRODUCTION

The act of engaging in sexual activity without one’s consent is known as rape. Section 375 of
the Indian Penal Code defines rape as "sexual intercourse with a woman against her will,
without her consent, by coercion, misrepresentation or fraud or at a time when she has been
intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of
age. 2 " An exclusion from the aforementioned provision is marital rape, defined as non-
consensual sexual intercourse by one spouse with the other. Common understanding
acknowledges rape as a grave offense globally, inflicting both physical and psychological
wounds on victims, haunting them indefinitely. The omission of marital rape from this section
prompts a significant inquiry into condoning rape under the guise of matrimony. Notably, 36
countries, including India, do not acknowledge marital rape as a criminal offense.

MARRIAGE AS A SACRED UNION

Marriage in India is seen as a sacred relationship that is intricately woven into the fabric of the
country's culture, going beyond simple legal or social accords. Indian marriages, steeped in
long-standing rituals and traditions, symbolise more than just the joining of two people; they
stand for the unification of families, communities, and ancestors' legacies.
A variety of rites and ceremonies, each with deep spiritual significance, are used to preserve
the sacredness of marriage. Every ceremony emphasises the sacredness of the relationship

1
The Oxford English Dictionary (2d ed. 1989), available at https://www.oed.com/.
2
IPC § 375.

4|Page
being formed, whether it is the vibrant celebrations of a traditional Hindu wedding, the
seriousness of a Muslim Nikah, or the simplicity of a Sikh Anand Karaj.
The concepts of friendship, respect for one another, and support are central to Indian marriage
values. In addition to being seen as the performance of social obligations, marriage is also seen
as a means of providing people with a sense of spiritual and emotional stability. It is common
to compare the marriage bond to a divine partnership, in which partners are seen as equal parts
of a single, cohesive whole, supporting and enhancing one another in every aspect.
Moreover, religious beliefs and customs play a major role in the significance of marriage in
India, where many view it as a sacrament approved by God. The significance of selflessness,
devotion, and loyalty emphasises the sacredness of marriage bonds even more.
Essentially, marriage in India is more than just a contract; it is a holy pact that binds people
together—individuals, families, and communities—everything that is eternal about love,
harmony, and spiritual peace.

In the case of Tikait v. Basant 3 , it was established that Hindu marriage is regarded as a
sacrament. Subsequently, the esteemed Supreme Court also recognized marriage as a contract,
while consistently acknowledging its sacramental nature. Within Indian society, there exists a
prevailing belief that marriage grants husband implicit permission to engage in sexual activity
with their wives, regardless of her consent. The wife's agreement is often assumed by both the
husband and society at large. Society plays a significant role in framing sexual intercourse as a
natural component of a fulfilling married life, thereby equating marriage consent with consent
for sexual relations with the husband.

HISTORY OF RAPE LAWS IN INDIA

Since the inception of rape laws in India by the British, a clear distinction has been drawn
between marital and non-marital rape, with marital rape being exempted from
criminalization. Over time, there have been amendments to the age criteria for wives under
the exception to section 375. Initially set at 8 years, this threshold has gradually increased to
10, 12, 14, and currently stands at 15 years. Marital rape can be prosecuted if the wife is
under the age of 15 years

3
Tikait v. Basant, ILR 28 Cal 758.

5|Page
The legality of the exception clause permitting marital rape has been questioned on several
occasions, yet significant progress on this issue remains elusive. The matter was first
addressed in India in the 42nd Law Commission report of 1971, where the commission did
not perceive a necessity to criminalize marital rape. Subsequently, the argument for
criminalizing marital rape was dismissed in the 172nd Law Commission Report.
Following the notorious gang rape case in 2012 that deeply impacted the nation, a committee
was formed under Justice Verma to reassess the country's criminalization system. The
committee recommended the criminalization of marital rape. However, the parliamentary
standing committee rejected this recommendation in 2013, citing the following reasons:
1. Making marital rape a criminal offense may challenge the sacredness of marriage, as
society perceives marriage as a sacred bond.
2. Altering the exception clause may not be necessary, considering alternative legal
remedies available to wives, such as filing for cruelty under section 498 of IPC or
seeking protection under the Domestic Violence and Protection of Women Act, 2005.
3. Criminalizing marital rape could result in excessive intervention in the institution of
marriage.

ARGUMENTS IN FAVOUR OF NOT CRIMINALISING MARITAL RAPE

MISUSE OF THE LAW

The concern over the criminalization of marital rape has been fueled by the potential for
misuse of the law, prompting scrutiny from various quarters including individuals, legal
experts, and even men's rights advocates. One significant point raised against criminalizing
marital rape revolves around the statistics related to the misuse of Section 498A, which
pertains to dowry cases. According to some activists, a substantial portion, up to 85%, of
dowry cases are deemed false. There is apprehension that India may not be equipped to
handle another flawed law, which could lead to what is described as "legal terrorism." Many
men's rights activists are particularly cautious about the criminalization of marital rape,
fearing that it could be subject to even greater misuse compared to existing anti-dowry
legislation.
In 2020, a total of 111,549 cases were filed under Section 498A. Among these, 5,520 cases
were dismissed by the police, citing them as false. Additionally, a total of 16,151 cases were
closed by the police for various reasons, such as lack of merit, factual or legal errors, or being

6|Page
civil disputes. This represents 14.4% of cases closed by the police due to insufficient
evidence.Last year, 96,497 men and 23,809 women were arrested under Section 498A,
resulting in a total of 120,306 arrests under this provision.
Out of the 18,967 cases that went to trial, 14,340 ended in acquittal, while 3,425 resulted in
convictions. As of the end of 2020, there were 651,404 cases pending trial under Section
498A, with a pendency rate of 96.2%.
There have been instances where husbands, facing accusations under Section 498A, have
resorted to suicide, claiming that false allegations arose only after their relationships
deteriorated, resulting in judicial harassment for their families. The contention is that if
marital rape were to be criminalized, it could become another avenue for disgruntled wives to
make false claims. While acknowledging the existence of genuine victims of marital rape, the
argument posits that such a law could be disproportionately used against innocent men rather
than serving as a means to deliver justice for real victims.

CONSENT IS ALWAYS THERE

In societal perception, it's commonly believed that when a woman agrees to marry, she

inherently understands that sexual relations with her husband are part of the marital contract.

Implied consent is often presumed in marriage, with some even citing spiritual texts where

the wife is depicted as the husband's property. This perspective has been repeatedly cited by

the government when challenged by the judiciary to review laws concerning the

criminalization of marital rape.However, consenting to marriage does not equate to

consenting to sexual intercourse. A significant argument against this notion is that even in the

case of marital dissolution, remedies such as divorce exist where consent can be withdrawn.

So, the question arises: why is there no legal recourse to address forced sexual intercourse

within marriage?

BURDEN OF PROOF

The issue of burden of proof presents a significant challenge in the criminalization of marital
rape. In the context of marital relations, sexual intercourse is typically viewed as an inherent

7|Page
aspect of marriage. Therefore, if marital rape were to be criminalized, questions arise
regarding who would bear the burden of proof and what that burden would entail.
If the burden of proof were placed on the woman, concerns arise that mere allegations,
similar to cases of dowry violence, could potentially devastate not only the husband but also
the entire family. Conversely, if the burden of proof were placed on the husband, he would be
tasked with proving a negative, which presents its own set of challenges.
Many argue that in cases of marital rape, where evidence such as CCTV footage is often
unavailable, establishing proof becomes exceedingly difficult. Therefore, applying the
concept of burden of proof in these cases is seen as problematic.

THE BREAKDOWN OF THE INSTITUTION OF MARRIAGE

In a paper published in 2010 titled 'Rape Within Marriage in India: Revisited', Professor K I
Vibhute observed that the primary factor lending legitimacy to the provision against
criminalizing marital rape is the emphasis on preserving the institution of the family. This
preservation is seen as crucial for ruling out the potential occurrence of false, fabricated, or
motivated accusations of 'rape' by a 'wife' against her 'husband'. Additionally, pragmatic
procedural challenges that may arise in such legal proceedings are also considered.
Hence, a key argument against the criminalization of marital rape is the concern that it could
lead to the destabilization of the institution of marriage due to wives making false accusations
against their husbands. This argument also extends to the notion that both partners in a
relationship may feel compelled to be excessively cautious from a legal standpoint in their
everyday marital interactions, anticipating potential allegations of this nature.
Marriage is often viewed as a private matter, giving rise to another contention that it is a sacred
bond. Those opposing the criminalization of marital rape argue that doing so would result in
undue interference in the institution of marriage, thereby impacting societal norms and cultural
practices. However, a compelling counterargument to this perspective is that, even in modern
India where fundamental rights should be paramount, the government is disregarding these
rights by providing unjustified justifications for not criminalizing marital rape in the name of
preserving the sanctity of marriage.

CONJUGAL RIGHTS

Certain rights are afforded to both husband and wife within the institution of marriage.
Conjugal rights refer to "the rights that a husband and wife each have in a marriage, especially

8|Page
the right to have sex with their partner." It is commonly believed that if either spouse asserts
their conjugal rights, it cannot be considered a criminal act. The judiciary has, on several
occasions, acknowledged that sexual intercourse between spouses is a conjugal right and has
directed the wife to cohabit with the husband if no reasonable explanation for living separately
is provided by the wife. The existence of provisions for conjugal rights in personal laws, such
as Section 9 of the Hindu Marriage Act, 1955, and Section 36 of the Parsi Marriage and Divorce
Act, 1936, further supports this argument. However, it is imperative to recognize that in
contemporary times, women cannot be compelled to engage in sexual intercourse with their
husbands against their will under the guise of conjugal rights.

GENDER NEUTRALITY

Arguments advocating for a gender-neutral definition of 'rape' have been presented on

numerous occasions, and similar arguments are raised concerning marital rape as well. Many
argue that even if the exception in IPC Section 375 is eliminated or criminal provisions are
added to the Domestic Violence Act, husbands may not be able to utilize them.
Some of the aforementioned issues may have straightforward solutions, while others could be
more complex. For instance, in cases where clear evidence of rape is lacking, the law could
potentially afford the benefit of the doubt to a husband who has no prior history of violence or
abuse, thus preventing sudden allegations of rape.
Nevertheless, it is crucial that these issues are thoroughly examined and addressed in
discussions surrounding marital rape.

FEAR OF LEGAL TERRORISM

According to the NCRB report, there were 28,046 reported rape cases in 2020. However, only
39% of these cases resulted in convictions, with 17% being classified as false accusations. The
remaining cases ended in acquittals due to insufficient evidence to prove the occurrence of
rape. Section 498A of the IPC addresses cruelty against wives by their husbands or their family
members and is notorious for its misuse. In 2005, the Supreme Court of India likened the
misuse of this section to "Legal Terrorism." Out of the 18,967 cases brought to trial in 2020,
14,340 resulted in acquittals, highlighting the extent of misuse.

This underscores the concern that criminalizing marital rape could potentially be exploited
against husbands and their families. However, this argument is countered by the difficulty in

9|Page
proving marital rape, especially when the victim resides with her husband's family and
witnesses may be unwilling to testify against the husband. Despite the risk of misuse, women
facing cruelty in the form of marital rape should not be left to endure such atrocities, as they
have the right to control their own bodies.

Another argument against the fear of legal terrorism as a reason for not criminalizing marital
rape is that the Supreme Court has recognized instances of misuse of provisions related to rape,
domestic violence, and cruelty. Consequently, it has issued guidelines for the arrest of accused
individuals, resulting in a significant decrease in the number of arrests in such cases, nearly
halving the figure.

FROM THE LENS OF JUDICIARY

NIMESHBHAI BHARATBHAI DESAI V. STATE OF GUJARAT, 2018

The Court deliberated on whether coercing a spouse into oral sex would constitute rape
punishable under Section 376 of the IPC.
The Court expressed the view that marital rape remains uncriminalized in India due to
Parliament's concerns about potentially destabilizing the institution of marriage. It fears that an
unscrupulous wife could weaponize such laws to falsely accuse her husband, causing undue
distress. However, safeguards within the criminal justice system exist to detect and scrutinize
false or malicious marital complaints, and individuals making baseless accusations can be held
accountable under the law. Ignoring marital rape on account of this apprehension is untenable.
While Indian laws grant women the rights to life and liberty, they do not extend to bodily
autonomy within marriage. Thus, while a husband's assault on his wife would constitute an
offense under the IPC, coercing his wife into sexual intercourse would not be considered rape
solely due to the existence of a valid marriage.4
The Court outlined three prevalent forms of marital rape commonly observed in society:
1. Battering rape: This form of marital rape encompasses instances where women endure
both physical and sexual violence within the relationship. Such occurrences may
involve the wife being physically assaulted during sexual acts or may follow a brutal

4
Nimeshbhai Bharatbhai Desai v. St. of Gujarat, 2018 SCC OnLine Guj 732.

10 | P a g e
 episode where the husband coerces his wife into sex against her will as a way to
reconcile. Victims of this type of rape often find themselves falling into this category.
2. Force-only rape: In this variant of marital rape, husbands exert only the necessary
amount of force to pressure their wives into sexual activity. While physical battering
may not always be present, women who refuse sexual intercourse frequently encounter
such assaults.
3. Obsessive rape: This type of marital rape involves assaults characterized by severe
torture and/or deviant sexual acts, often exhibiting a sadistic nature. Such assaults are
typically intense and may also be categorized as sadistic rape.

T. SAREETHA VS T. VENKATA SUBBAIAH, 1983

In the T. Sareetha v. T. Venkata Subbaiah case of 1983, the Supreme Court of India determined
that compelling spouses to adhere to a decree for the restitution of conjugal rights, as outlined
in Section 9 of the Hindu Marriage Act, 1955, violated fundamental rights guaranteed by the
Constitution of India. The court concluded that such enforcement effectively coerced spouses
into cohabiting against their wishes, thereby encroaching upon their personal freedom and
autonomy within the marital relationship. Consequently, the court declared Section 9 of the
Hindu Marriage Act unconstitutional to the extent that it mandated the restitution of conjugal
rights. This significant legal decision affirmed that spouses cannot be forced to live together if
they do not consent to do so, underscoring the significance of individual autonomy and dignity
within the institution of marriage5.

HARVINDER KAUR V. HARMANDER SINGH CHOWDHARY, 1983

Following the ruling by the Andhra Pradesh High Court, the Delhi High Court addressed the
constitutionality of Section 9 of the Hindu Marriage Act, 1955, regarding the restitution of
conjugal rights in the same year. However, the Delhi High Court took a diametrically opposite
position compared to the Andhra Pradesh High Court. It argued that the emphasis placed by the
Andhra Pradesh High Court on sexual intercourse was excessive and failed to consider the
broader societal benefits and the welfare of children. Subsequently, the Supreme Court upheld
the decision of the Delhi High Court.6

5
T. Sareetha vs T. Venkata Subaihah, AIR 1983 AP 356.
6
Harvinder Kaur vs Harmander Singh Chowdhary, AIR 1984 Delhi 66.

11 | P a g e
INDEPENDENT THOUGHT V. UNION OF INDIA, 2017

The court deliberated on whether sexual intercourse between a man and his wife, when the wife
is a girl aged between 15 and 18 years, constitutes rape.

Exception 2 to Section 375 of the Indian Penal Code, 1860 (IPC), takes a negative stance on
this issue. However, the court asserted that sexual intercourse with a girl under 18 years of age
amounts to rape irrespective of her marital status. The artificial distinction goes against the
principles enshrined in Article 15(3) and Article 21 of the Constitution. While the Prohibition
of Child Marriage Act (PCMA) of 2006 criminalized child marriages as an initial step, there
has been no subsequent amendment to Section 375 of the IPC, as it stood in 2006, to
decriminalize marital rape of underage girls. Consequently, a girl aged between 15 and 18 years
who is married could be considered a victim of "aggravated penetrative sexual assault" under
The Protection of Children from Sexual Offences (POCSO) Act, 2012. However, she cannot be
considered a victim of rape under the IPC if assaulted by her husband, as the IPC does not
recognize such assaults within marriage as rape.7

The court ordered the nullification of Exception 2 to Section 375 IPC concerning a girl child
under 18 years for the following reasons:

1. It is deemed arbitrary, oppressive, and unjust, lacking fairness, reasonableness, and justice.
It encroaches upon the rights of the girl child, thereby violating Articles 14, 15, and 21 of the
Indian Constitution.

2. It exhibits discriminatory characteristics and contravenes Article 14 of the Indian

Constitution.

3. It conflicts with the stipulations outlined in the Protection of Children from Sexual Offences
(POCSO) Act.

RIT FOUNDATION V. UNION OF INDIA, 20228

Justice C. Hari Shankar, in the division bench judgment, expressed the view that there exists a
clear distinction between sexual acts committed within the bounds of marriage with one's own
spouse and those committed with strangers. He emphasized that the absence of consent does
not negate the presence of an intelligible difference between these two scenarios. While

7
Independent Thought vs Union of India, AIR 2017 SC 4904.
8
RIT Foundation vs Union of India, 2022 SCC Online Del 1404.

12 | P a g e
acknowledging disapproval of the husband having sex with his wife against her will, he argued
that such an act cannot be equated with the violent act of rape committed by a stranger. The
legislature's decision to treat non-consensual sex differently within and outside of marriage
indicates a qualitative disparity between sexual relations in these contexts, which does not
violate Article 14 of the Constitution.
Furthermore, Justice Shankar asserted that sexual engagement within marriage is a natural
expectation and is considered sacred within the institution of marriage. He argued against state
interference in this sacred union, stating that labeling a husband as a rapist would diminish the
sanctity of marriage.
Regarding children born out of non-consensual sex within marriage, the judge posed the
question of whether such a child should be labeled as the offspring of a rapist. He contended
that the exception in the law does not condone the husband's actions but rather refrains from
labeling him as a 'rapist' and the act as 'rape,' as there are other legal remedies available to the
wife under both civil and criminal law. Additionally, Justice Shankar denied the existence of a
fundamental right for the wife to have her husband convicted of rape.
Judge Rajiv Shakdher expressed the view that Exception 2 under Section 375 of the IPC
violates fundamental rights enshrined in Articles 14, 15, 19(1)(a), and 21 of the Indian
Constitution. He argued that it is discriminatory, unreasonable, and arbitrary to permit a
husband to engage in sexual intercourse with his wife even against her will. He highlighted that
even a sex worker is legally allowed to refuse consent, whereas a wife is not afforded the same
right. According to him, the right to cohabitation under conjugal rights does not entitle the
husband to disregard his wife's consent and engage in sexual activity with her. He cited the case
of K.S. Puttaswamy (Retd) v. Union of India9, wherein a 9-judge bench had discussed how
individual autonomy and privacy are integral to freedom and liberty. The judge emphasized
that preserving the institution of marriage requires upholding fundamental principles of
mutuality, partnership, agency, and respect for each other's physical and mental autonomy,
rather than granting immunity to offenses. He rejected the excuse of non-interference in the
private sphere, stating that it becomes void when heinous crimes are committed within it. He
also dismissed the notion that difficulty in collecting evidence should be a shield for allowing
exceptions for such serious crimes.

9
Justice K.S.Puttaswamy(Retd) v. Union of India, AIR 2018 SC (SUPP) 1841.

13 | P a g e
According to the National Family Health Survey (NHFS-4) report, over 99% of instances of
sexual violence by spouses in India go unreported. Additionally, it was asserted that the
exception in question violates Article 21 of the Constitution, as non-consensual intercourse has
adverse physical, psychological, and emotional effects on women. Rape is viewed as an offense
against a woman's dignity, bodily integrity, autonomy, and agency, deserving societal
condemnation. Furthermore, it was argued that the exception contravenes Article 15, as it
undermines the environment of safety for women. Additionally, the impugned provisions were
deemed to violate Article 19(1)(a), as they disregard a wife's freedom to assert her right to
sexual agency and autonomy. Consequently, the challenged provisions were struck down.

In recent times, several prominent cases in India have thrust the issue of marital rape into the
spotlight. Among these notable cases are:

1. KAVITA V. STATE OF HARYANA, 2020 - This case addressed marital rape and emphasized the
necessity of legal safeguards for women in abusive marital relationships. The High Court of
Punjab and Haryana deemed the exception in the Indian Penal Code (IPC), which exempts
husbands from rape charges, discriminatory and in need of review.10

2. MEGHA VS UNION OF INDIA, 2021 - Filed by a woman who experienced sexual violence and
abuse from her husband, this case underscored the urgent need for a comprehensive law
addressing marital rape and the lack of protection for women in abusive marriages.

3. SHREYA VS STATE OF MADHYA PRADESH, 2021- This case focused on sexual violence and
abuse within marriage, stressing the importance of legal protections for women in such
circumstances. The High Court of Madhya Pradesh highlighted the inadequacy of current laws
and advocated for a comprehensive legislative framework to address marital rape.

These cases have brought significant attention to the issue of marital rape and have underscored
the imperative for legislative reforms to criminalize and address it effectively

10
Kavita v. St. of Haryana & Ors., (2020) 12 P&H CK 0147.

14 | P a g e
 WHY MARITAL RAPE SHOULD BE CRIMINALISED

1. Marriage cannot serve as justification for a husband to coerce sexual activity at will.
2. Marriage cannot imply permanent consent.
3. Article 14 of the Indian Constitution safeguards individuals' right to equality, and marital
rape infringes upon the rights of married women in this regard. Forced sexual cohabitation also
violates the fundamental right under Article 21.
4. Marital rape directly contradicts Section 375 of the IPC, which aims to safeguard women
and penalize those who subject them to cruel acts. Section 375 cannot effectively fulfill its
purpose if husbands are exempt from punishment, as the repercussions of rape remain
unchanged regardless of marital status.
5. By establishing separate categories based on marital status, the exception in Section 375 IPC
shields men from accountability for their actions against their wives.
6. Failure to criminalize spousal rape suppresses a woman's dignity, implying lesser value is
placed on her dignity within marriage.
7. Marital rape constitutes a crime against humanity and represents the most egregious violation
of a woman's bodily integrity.
8. Like an unmarried woman, a married woman possesses the same entitlement to bodily
autonomy.
9. In the State of Karnataka v. Krishnappa11, the Supreme Court declared that sexual violence,
alongside humiliation, constitutes an unlawful intrusion into a woman's privacy and sanctity.
The court further affirmed that non-consensual sexual conduct amounts to physical and
sexual violence.
10. In the case of Suchita Srivastava v. Chandigarh Administration12, the Supreme Court
equated the right to choose sexual activity with the protections enshrined in Article 21, which
include the right to personal liberty, privacy, dignity, and bodily integrity.
11. The Supreme Court affirmed the right to privacy for all citizens in the landmark case of
Justice K.S. Puttaswamy vs. Union of India (2017)13. This includes the aspect of decision-
making privacy, especially concerning matters related to one's sexuality, procreation, or
intimate relationships.

11
The St. of Karnataka v. Krishnappa, 2000 CRI LJ 1793.
12
Suchita Srivastava & Anr. v. Chandigarh Administration, AIR 2010 SC 235.
13
Supra note 9.

15 | P a g e
12. In Joseph Shine v. Union of India14, Justice Chandrachud pondered whether marriage
should negate a person's sexual autonomy, concluding in the negative. He emphasized that
the right to refuse sex should persist even after marriage.
13. Across these rulings, the Supreme Court consistently upheld Article 21 of the
Constitution, affirming that all women have the right to abstain from sexual activity,
irrespective of their marital status.
14. Criminalizing marital rape not only affirms women's basic human rights but also provides
them with a sense of security against one of the most egregious crimes that can occur within
marriage. It empowers them to assert their right to refuse sexual intercourse.
15. Importantly, criminalizing marital rape establishes direct legal avenues for seeking
justice.
16. Section 9 of the Hindu Marriage Act, 1955 has faced legal challenge through a Public
Interest Litigation due to its imposition of reconciliation on estranged spouses. By seeking
restitution of conjugal rights through court action, one partner living separately can compel
the other to cohabit, potentially contributing to instances of marital rape.
17. Failing to address marital rape violates fundamental rights of women, including their right
to privacy, protection from exploitation, bodily integrity, and rights guaranteed under Article
21 and Article 14 of the Indian Constitution.
18. The Kerala High Court in 2021 acknowledged that coercing a wife into sexual activity
against her will constitutes marital rape. The court's observation highlighted:
• The disregard of a wife's autonomy by her husband, while not illegal, amounts to both
physical and mental cruelty.
• In contemporary social jurisprudence, spouses are viewed as equals in marriage, and
husbands cannot assert superiority over their wives regarding their bodies or personal
status. Any form of disrespect or infringement upon one's physical integrity
constitutes a violation of their right to maintain physical and mental autonomy.
• Although marital rape lacks explicit criminal recognition under the Penal Code, courts
recognize it as a form of cruelty. Consequently, the court deemed marital rape a valid
basis for divorce.

14
Josephine Shine v. Union of India, AIR 2018 SC 4898.

16 | P a g e
 ANALYSIS

The stance of the legislature remains steadfast in its reluctance to acknowledge that the
exception within the legal framework violates the fundamental rights of married women,
effectively denying them autonomy over their own bodies. Despite calls for reform, the
judiciary's response has been inconsistent. At times, it has recognized the imperative to strike
down such provisions, acknowledging the harm they inflict on women's dignity. However, in
other instances, the judiciary has upheld the exception, viewing it as an indispensable tool for
safeguarding the sanctity of marriage and respecting the private sphere of individuals.

In contrast, the Supreme Court has taken a clear stance on the matter, equating the right to
reproductive choice with the fundamental principles of privacy and personal liberty. It has
underscored that sexual violence and rape represent unlawful intrusions into a woman's privacy,
emphasizing the need for robust legal protections in this regard.

In my perspective, it is paramount for the legislature to acknowledge and uphold the rights of
women to exercise autonomy over their bodies. This autonomy should not be compromised or
violated by their spouses under the pretext of marital obligations. Consequently, the exception
under Section 375 of the IPC must be repealed, ensuring that fundamental rights supersede
societal norms. Laws must evolve with the changing times, particularly in today's era where
marriage is perceived as a partnership between equals, rather than an institution where women
are considered the property of their husbands. It is imperative that legal frameworks adapt to
reflect the progressive values of equality and individual autonomy in modern society.

CONCLUSION

The exception for marital rape establishes a peculiar differentiation between the rape of a
married woman and an unmarried woman. It is imperative for Parliament to acknowledge that
non-consensual sexual intercourse can occur within a marital relationship and should be
recognized as rape. This abhorrent crime should not be disregarded out of fear that
acknowledging it may disrupt the institution of marriage. Marriage is considered a sacred and
honorable bond between two individuals, where spouses are often regarded as each other's

17 | P a g e
better halves. It is distressing to contemplate the extent of trauma inflicted upon a woman
when subjected to such brutality within the confines of marriage. Every woman should have
the right to safeguard her bodily integrity, even within her marital union. Rape is a grave
offense, and those who commit it, regardless of their marital status, should be held
accountable as perpetrators of this crime.
Contrastingly, numerous other nations have outlawed marital rape and established legal
safeguards for women in abusive marital unions. Countries like the United States, the United
Kingdom, and Australia have designated marital rape as a criminal act punishable by law.
India's stance stands in stark contrast to these jurisdictions, underscoring the necessity for
legislative reform to tackle the problem of marital rape. The ongoing discourse and advocacy
for reform underscore the shifting social and cultural dynamics within India, highlighting the
demand for a more forward-thinking and gender-inclusive approach to combat sexual
violence and exploitation.

18 | P a g e