Marital Rape Debate in India: Legal Recognition vs.
Social
Reality
This Final Draft is submitted for Completion of the project on the subject of
Family Law.
Submitted to: Submitted by:
Dr. Pooja Srivastava Kanishka Raj
Assistant Professor of Law Roll no.= 24230
B.B.A. LL.B.
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA
ACKNOWLEDGEMENT
I want to show my sincerest gratitude to Dr. Pooja Srivastava, Assistant Professor of
law for his helpful guidance and support through the completion of the project. His
advices and ideas have been crucial in shaping my understanding of the legal and
social aspects in my project of “Marital Rape Debate in India: Legal Recognition vs.
Social Reality”.
I would also like to thank my friends and colleagues who helped with their insights
in completion of my project.
This project would not have been possible without the collective effort and
inspiration from all these individuals.
Kanishka Raj
Roll No.: 24230
DECLARATION
I, Kanishka Raj, want to say that the project for my B.B.A. LL.B.(Hons.) degree at
Chanakya National Law University in Patna, titled “Marital Rape Debate in
India: Legal Recognition vs. Social Reality” is original representation of my own
work. I want to say that I haven’t given this project to any other university for any
another degree or course, and I am fully responsible for my work and its content.
Signature of the Candidate
Kanishka Raj
B.B.A. LL.B. (Hons.)
1st Semester
TABLE OF CONTENTS
1) Introduction
2) Legal Framework and Recognition of Marital Rape in India
3) Constitutional Challenges to Exception 2 of Section 375
4) Social Reality: Challenges Faced by Marital Rape Survivors
5) Arguments For and Against Criminalization
6) Recommendations and the Way Forward
7) Conclusion
1. Introduction
The “marital rape” debate in India emphasizes the conflict between individual
autonomy and traditional marital norms. While there have been considerable
developments in women's right globally, Indian law still approaches marriage as an
area in which consent is a presumed aspect. Marital rape involves non-consensual
sexual intercourse by a husband with his wife. Yet, in Exception 2 of Section 375 of
the Indian Penal Code (IPC), marital rape is not defined as a criminal act if the wife is
18 years or older. This exception in law has its roots in colonial laws and is based on
the premise that marriage connotes consent to sex for life. The legal non-recognition
of marital rape presents grave difficulties for survivors.
Married women who suffer from sexual violence by their husbands do not have
criminal remedies and are instead left with sparse civil recourse under the Protection
of Women from Domestic Violence Act, 2005 (PWDVA). This legal gap reiterates
patriarchal norms, where a wife's bodily autonomy takes second place to a husband's
marital rights. In spite of rising public debate and judicial intervention, Indian
legislators have still not added marital rape to the IPC as a criminal offence. Across
the world, over 100 nations have made marital rape a criminal offense, such as the
United States, United Kingdom, and Australia. India's inaction to do so not only goes
against international human rights commitments but also betrays the constitutional
promises of equality, dignity, and personal liberty. The split verdict of the Delhi High
Court in RIT Foundation v. Union of India (2022) and the current Supreme Court
deliberations point towards the legal intricacies involved in the matter. This project
critically analyzes the legal, constitutional, and social aspects of the Indian marital
rape controversy. It looks into the historical context, judicial interpretations,
comparative legal regimes, and real-life experiences of the survivors. It advocates for
holistic legal reform so that marriage will not be a shield for sexual violence.
2. Legal Framework and Recognition of Marital Rape in India
Indian law also defines rape under Section 375 of the IPC, which states that sexual
intercourse without free consent is rape. But Exception 2 clearly excludes husbands
from prosecution for unconsented sex with their wives if the wife is above 18 years.
This exception is based on colonial-era beliefs in which women were considered
property in marriage and their sexual autonomy was not respected.
The law on marital rape has changed over the years, though inconsistently.
In Independent Thought v. Union of India (2017), the Supreme Court invalidated
Exception 2 in the case of the wife being under 18 years, acknowledging that forced
sex with a minor wife is rape.
This ruling was a marked departure from earlier interpretations and held that marital
status cannot abrogate bodily autonomy. Yet, adult women are still outside of
criminal protection against marital rape. The Delhi High Court dealt with the matter
in RIT Foundation v. Union of India (2022), returning a split verdict. Justice Rajiv
Shakdher contended that marital rape is against constitutional rights and must be
criminalized, whereas Justice Hari Shankar upheld Exception 2, fearing misuse and
destabilization of marriages. This judicial standoff has brought the issue before the
Supreme Court, which will rule on the constitutional validity of Exception 2. India's
present law not only undermines international standards of law but also leaves
married women unprotected from sexual abuse. Through the continued support of
Exception 2, the law reaffirms that marriage provides husbands with immunity
against sexual crimes, leading to a legal blind spot in upholding women's rights.
3. Constitutional Challenges to Exception 2 of Section 375
The marital rape exception also gives rise to serious constitutional issues as it is a
direct contravention of basic rights under the Indian Constitution. Three main
constitutional objections to Exception 2 of Section 375 IPC are:
1. Violation of Article 14 (Right to Equality)
Article 14 ensures equality before the law and equal protection in the legal
system. In treating married and unmarried women differently, Exception 2
introduces an arbitrary distinction. While an unmarried woman is able to
prosecute a rapist, a married woman cannot have the same protection if the
perpetrator is her husband. This discriminatory distinction defeats legal
equality and gender justice.
2. Violation of Article 21 (Right to Life and Personal Liberty)
The Supreme Court has viewed Article 21 to encompass the right to dignity,
right to bodily integrity, and right to sexual autonomy. The exception of
marital rape permits a husband to invade a wife's personal liberty,
disregarding her sexual autonomy right. In scenarios such as Justice K.S.
Puttaswamy v. Union of India (2017), the Court pointed out bodily integrity as
a basic right, which Exception 2 directly violates.
3. Inconsistency with Article 15 (Non-Discrimination)
Article 15(1) forbids discrimination based on sex. Exception 2 is discriminatory
because it denies married women protection from sexual violence, thus
upholding gender-based discrimination. This exemption in law considers
wives as subordinate and denies them equal protection under the law, which
sustains patriarchal norms.
These constitutional contradictions prove that Exception 2 is unjust, discriminatory,
and against India's constitutional morality.
4. Social Reality: Challenges Faced by Survivors of Marital Rape
In addition to legal hurdles, survivors of marital rape encounter severe social and
psychological hurdles. These are based on patriarchal mindsets, economic reliance,
and social stigmatization that silence survivors and deter them from pursuing justice.
1. Patriarchal Mentality and Social Stigma
Indian culture tends to regard marriage as a sacred institution wherein sexual
consent is assumed. Victims of marital rape are often blamed, and what they
experience is brushed aside as a private marital affair. Such victim-blaming
deters women from reporting sexual violence to avoid social exclusion and
backlash from the family.
2. Absence of Legal Remedies
Married women cannot prosecute their husbands for rape under Section 375
IPC. They have no option but to seek recourse through the PWDVA, 2005,
which offers only civil remedies such as protection orders and residence rights
but no criminal penalties. Such limited protection does not treat marital rape
as a serious criminal offense, thus leaving survivors without proper justice.
3. Emotional and Psychological Trauma
Marital rape inflicts long-term emotional harm, such as post-traumatic stress
disorder (PTSD), depression, and anxiety. Survivors suffer from chronic
physical injuries and sexual health problems, but receive limited mental health
assistance because of societal taboos.
The lack of legal recognition perpetuates a culture of impunity and compels
survivors to suffer in silence.
5. Arguments For and Against Criminalization
The criminalization of marital rape is a contested issue in India, with both supporting
and opposing legal reform arguments. This section assesses the legal, social, and
practical aspects of both arguments.
Arguments Against Criminalization
1. Fear of Misuse of Law
Critics contend that marital rape laws can be abused by women to make false
charges during marital conflicts or divorce cases. They contend that this abuse
might result in the harassment of husbands and dissolution of marriages.
2. Undermining the Institution of Marriage
Detractors argue that making marital rape a criminal offense would
destabilize marriages by bringing criminal penalties to a private relationship.
They believe that marriage is founded on mutual trust, and the law should not
intrude upon the private sphere of marital life.
3. Alternative Legal Remedies Already Exist
Others opine that the Protection of Women from Domestic Violence Act, 2005
(PWDVA) and Section 498A IPC (husband's cruelty) already give adequate
protection to marital rape victims in the form of civil and criminal remedies.
4. Practical Challenges in Proving Marital Rape
Critics further point to evidentiary challenges of establishing non-consent in
marriage. According to them, it is difficult to separate consensual from non-
consensual acts in a love relationship, which renders prosecution tough.
Arguments For Criminalization
1. Consent is Fundamental
Supporters highlight that consent is essential to all sexual relationships,
including marriage. Marriage cannot be a license for sexual violence, and the
law must ensure a wife's bodily autonomy.
2. Constitutional Violations
The marital rape exception contravenes Article 14 (Right to Equality), Article
21 (Right to Life and Personal Liberty), and Article 15 (Non-Discrimination).
Legalizing marital rape would bring Indian law into conformity with
constitutional principles and international obligations.
3. International Legal Obligations
India has signed international treaties such as the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW), which
makes it compulsory for the criminalization of gender-based violence, such as
marital rape.
4. Protection for Victims and Deterrence for Perpetrators
Legalizing marital rape will give protection and justice to survivors, as well as
serve as a deterrent to sexual violence in marriage. In the absence of criminal
sanctions, survivors continue to be vulnerable to ongoing abuse.
6. Recommendations and the Way Forward
1. Amend Section 375 IPC
The Indian Penal Code needs to be amended to delete Exception 2 of Section
375, making non-consensual sex within marriage a form of rape.
2. Comprehensive Legal Framework
Create a separate legal framework to deal with marital rape with definitions,
evidentiary standards, and procedural safeguards to avoid misuse but protect
the survivors.
3. Victim-Centered Support Services
Intensify victim support structures, such as counseling, legal assistance, and
shelters for victims of marital rape. There should be readily available mental
health services to treat emotional trauma.
4. Training for Judges and the Police
Use specialized training for judges, attorneys, and police officers in the
handling of marital rape cases with sensitivity and discretion so that the
survivors receive equitable treatment.
5. Public Awareness Campaigns
Initiate national campaigns to awareness-raise the public regarding marital
rape, its legal significance, and the significance of consent in marriage to break
patriarchal norms.
6. Periodic Review Mechanism
Set up a review committee to oversee the enforcement of marital rape laws,
take care of emerging issues, and suggest policy reforms if necessary.
7. Civil Society Partnership
Engage in partnership with NGOs and women's rights organizations to
deliver support services, undertake research, and campaign for progressive
legal reform on marital rape.
7. Conclusion
The Indian marital rape debate represents a basic conflict between ancient marital
traditions and new legal values of equality, autonomy. The persistence of Exception 2
of Section 375 IPC deprives married women of the right of bodily autonomy,
perpetuating the patriarchal assumption that a wife's consent is long-lasting upon
marriage. Such a legal deficiency not only disregards constitutional rights but also
continues to perpetuate sexual violence in intimate relationships.
Across the world, nations have realized that marriage must not be a legal shield for
rape. The criminalization of marital rape is necessary to bring Indian law in line with
international human rights obligations and safeguard married women from sexual
abuse. Arguments against criminalization—e.g., concern about misuse or
undermining marriage—are overstated and ignore the fundamental harm inflicted
by marital rape.
To tackle this problem, comprehensive legal reform is needed, which involves
amending Section 375, ensuring victim support, and training the judiciary and law
enforcement. The Supreme Court's forthcoming ruling on RIT Foundation v. Union
of India offers a chance to provide progressive and just legal reforms.
Finally, marital rape is a violation of human dignity and basic rights. The law should
acknowledge that consent is still key to all sexual encounters—marital status should
not deny an individual his/her right to say no. Criminalizing marital rape is not
merely a legal imperative—it is a moral obligation to uphold the dignity, liberty, and
equality of all women.
