No Means No – Even in Marriage: The Legal Void of Marital Rape in India

As society evolves, questions of consent, equality, and bodily autonomy have come to the forefront. The criminalization of marital rape is not just a women’s rights issue but also a matter of constitutional morality and human dignity.

The Legal Framework in India

Section 375, IPC defines rape but exempts marital relations through Exception 2.

Section 376B, IPC criminalizes sexual intercourse by a husband upon his wife during separation, but offers no protection for women living with their husbands.

This creates a paradox: a woman has legal protection from sexual assault by strangers, acquaintances, and even a separated husband—but not from her own spouse.

This immunity violates several constitutional provisions:

• Article 14 – Right to equality before law.
• Article 15(1) – Prohibition of discrimination on grounds of sex.
• Article 21 – Protection of life and personal liberty, which includes the right to dignity and bodily autonomy.

Judicial Pronouncements

Indian courts have grappled with the issue, often highlighting its conflict with constitutional principles:

• Independent Thought v. Union of India (2017) 10 SCC 800
  The Supreme Court read down Exception 2 to Section 375 to the extent that intercourse with a minor wife between 15–18 years constitutes rape. This was a significant step, though it stopped short of addressing adult wives.
• Joseph Shine v. Union of India (2019) 3 SCC 39
  While striking down Section 497 IPC (adultery), the Court observed that women cannot be treated as property of husbands, reaffirming principles of dignity and equality. This reasoning has strong implications for marital rape immunity.
• RIT Foundation v. Union of India (Delhi High Court, 2022)
  In this case, the Delhi High Court delivered a split verdict. Justice Rajiv Shakdher held Exception 2 unconstitutional for violating Articles 14 and 21, while Justice C. Hari Shankar upheld the marital rape exception citing legislative domain. The matter now awaits Supreme Court’s final determination.

International Perspective

Globally, India remains one of the few major democracies that has not criminalized marital rape.

Over 150 countries, including the UK, USA, and South Africa, recognize marital rape as a crime.

India, as a signatory to CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), has an obligation to eliminate gender-based violence, yet continues to retain marital immunity.

Social and Practical Concerns

Opponents of criminalization often argue:

1. Misuse of Law – Fear that false cases may destabilize marriages.
2. Privacy of Marriage – Courts should not interfere in intimate relationships.
3. Difficulty in Proof – Consent within marriage may be difficult to establish.

However, these arguments fail when weighed against the fundamental rights of women.

The Supreme Court in Vishaka v. State of Rajasthan (1997) held that international conventions can be read into domestic law to protect fundamental rights.

Consent is the cornerstone of sexual autonomy, whether inside or outside marriage.

The Way Forward

1. Legislative Amendment – Parliament must repeal Exception 2 to Section 375 IPC.
2. Awareness and Sensitization – Legal reform must be accompanied by public education to dismantle patriarchal notions.
3. Judicial Will – Courts should adopt a purposive interpretation of Articles 14 and 21 to extend protection.
4. Support Systems – Legal recognition must be supported with counseling, shelter homes, and fast-track courts to protect survivors.

Conclusion

Criminalizing marital rape is not about dismantling marriage; it is about ensuring that marriage does not become a license to violate consent. The Constitution envisions India as a nation where equality and dignity are non-negotiable. Retaining marital rape immunity undermines both. As Justice D.Y. Chandrachud rightly observed, “The right to bodily integrity and decisional autonomy is at the core of the right to life and liberty.”

India stands at a crucial juncture: to continue shielding archaic laws or to uphold constitutional morality. The time has come to recognize marital rape as a crime and affirm that consent does not vanish at the altar.