Marital rape refers to non-consensual sexual intercourse by a husband with his wife. In most progressive legal systems, rape within marriage is treated as a criminal offense, just like any other form of sexual assault. However, in India, marital rape is not recognized as a crime under the Indian Penal Code (IPC), except in limited circumstances.
Under Section 375 of the Indian Penal Code, 1860, rape is defined as non-consensual sexual intercourse by a man with a woman. However, Exception 2 to Section 375 IPC states that sexual intercourse by a man with his own wife (if she is above 18 years old) is not rape, even if she does not consent.
This exemption effectively legalizes marital rape, raising significant concerns about women’s rights, bodily autonomy, and gender equality. Over the years, legal activists, civil lawyers in Navi Mumbai, human rights organizations, and the judiciary have debated whether this exemption should be removed to criminalize marital rape in India.
1. Understanding Section 375 IPC: Definition and Exception
What is Rape Under Indian Law?
Section 375 IPC defines rape as:
“A man is said to commit ‘rape’ if he penetrates his penis into a woman’s vagina, mouth, urethra, or anus, or inserts any object into these body parts, or manipulates any part of her body to cause penetration, or applies his mouth to a woman’s genital organs, under any of the following conditions:“
- Against her will
- Without her consent
- With consent obtained through force, threat, or intoxication
- With consent when she is unable to understand its consequences
- With or without her consent if she is under 18 years of age
The Marital Rape Exception (Exception 2 to Section 375)
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.”
Implications:
- If a husband forces his wife into sexual intercourse, it is not considered rape.
- The wife cannot file a rape case against her husband.
- Marital rape is only recognized if the wife is below 18 years of age.
- This exception is contrary to the principles of consent and bodily autonomy.
Marital Rape in Other Countries
Most democratic countries, including the USA, UK, Canada, France, Germany, and Australia, have criminalized marital rape. In contrast, India continues to maintain the marital rape exception, making it one of the few countries where a husband has legal immunity from being prosecuted for rape within marriage.
2. Legal Challenges and Judicial Precedents
Judicial Challenges to Marital Rape Exception
Many cases have challenged the constitutionality of the marital rape exemption. Some key cases include:
1. Independent Thought v. Union of India (2017)
- The Supreme Court of India struck down the marital rape exception for minor wives, ruling that sexual intercourse with a wife under 18 years of age is statutory rape.
- However, it did not criminalize marital rape for adult women.
2. RIT Foundation v. Union of India (2022)
- A group of women’s rights activists filed a petition to strike down the marital rape exception.
- The Delhi High Court gave a split verdict—one judge favored criminalization, while the other upheld the exemption.
- The case is now pending before the Supreme Court for final adjudication.
3. Joseph Shine v. Union of India (2018)
- The Supreme Court struck down Section 497 IPC (Adultery law) on the grounds that it violated women’s autonomy.
- Activists argue that similar reasoning should be applied to marital rape.
3. Arguments for Criminalizing Marital Rape
1. Violation of Fundamental Rights
- Article 14 (Right to Equality): Marital rape exemption treats married women differently from unmarried women, violating equality principles.
- Article 21 (Right to Life & Dignity): Forcing a woman to engage in non-consensual intercourse violates her dignity and bodily autonomy.
2. Consent Does Not End with Marriage
- Marriage does not mean blanket consent for sex.
- A woman has the right to say NO to sexual intercourse regardless of marital status.
3. Domestic Violence and Marital Rape are Linked
- Many women face domestic violence and sexual abuse from their husbands but have no legal remedy under rape laws.
- Protection of Women from Domestic Violence Act (2005) recognizes sexual abuse but does not classify marital rape as a crime.
4. International Human Rights Standards
- UN Human Rights Council and CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) recommend that India criminalize marital rape.
- Failure to do so makes India non-compliant with international women’s rights laws.
5. The Myth of “Institution of Marriage”
- Opponents of criminalization argue that it will weaken marriages.
- However, criminalizing violence does not destroy an institution—it strengthens individual rights within it.
4. Arguments Against Criminalizing Marital Rape
Opposition to criminalization comes from various conservative and political groups who argue:
✔ “Marriage Implies Consent” – They claim that sexual relations are part of marriage, and consent is implicit.
✔ “Misuse of Law” – Some argue that women may file false cases against their husbands.
✔ “Existing Laws Are Enough” – The government claims that laws like Section 498A IPC (Cruelty) and the Domestic Violence Act already offer protection.
✔ “Social and Religious Beliefs” – Some religious groups argue that criminalizing marital rape goes against Indian culture.
These arguments have been criticized for ignoring women’s autonomy and bodily rights.
5. Current Legal Position in India
As of today:
Marital rape is not a crime if the wife is over 18 years old.
If the wife is below 18 years, it is considered rape.
Divorce on grounds of marital rape is possible under family law.
Domestic Violence Act allows a wife to claim compensation for sexual abuse, but not criminal punishment for the husband.
The Supreme Court is reviewing the marital rape exception, and a landmark judgment is awaited.
6. The Role of Family Lawyers and Civil Advocates in Navi Mumbai
A family lawyer in Navi Mumbai or a civil advocate can help women in cases related to:
- Divorce due to marital rape (cruelty under Section 498A IPC)
- Compensation under Domestic Violence Act
- Filing complaints under women’s protection laws
- Guidance on legal challenges to marital rape laws
Legal experts, including Advocate Pooja, actively work to bring justice to victims of marital sexual abuse by using existing legal remedies while advocating for reforms.
7. The Way Forward
Remove Exception 2 to Section 375 IPC to criminalize marital rape.
Educate judges and police about marital rape as a serious crime.
Set up fast-track courts for rape cases, including marital rape.
Strengthen domestic violence laws to include criminal punishment for marital rape.
Raise awareness through legal aid and social campaigns.
Conclusion
The marital rape exception under Section 375 IPC is a legal loophole that violates women’s fundamental rights. India must align its laws with global standards and recognize that marriage does not give a man ownership over his wife’s body.
Legal experts, including civil lawyers in Navi Mumbai, are fighting for justice for women facing marital sexual abuse. With increasing awareness and judicial intervention, India is moving towards criminalizing marital rape—but urgent legislative action is needed.
