Marital Rape Exception Under IPC Under Review by Constitutional Bench: India Stands at a Crossroads of Consent and Constitutionality
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- 16 Apr 2025 --
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In a long-awaited development that could redefine the contours of sexual autonomy and marriage in India, the Supreme Court has referred the challenge to the marital rape exception under Section 375 of the Indian Penal Code (IPC) to a five-judge Constitutional Bench. The case is poised to decide whether marital rape should be recognized as a crime and whether the existing exception violates a woman’s bodily autonomy, dignity, and right to equality under the Constitution.
This could become one of the most defining legal debates in modern India’s gender rights history, placing the sanctity of marriage under scrutiny vis-à-vis constitutional guarantees.
Understanding the Marital Rape Exception
Under Section 375 IPC, rape is defined as non-consensual sexual intercourse. However, Exception 2 to Section 375 states:
“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
This effectively immunizes husbands from prosecution for rape within marriage, regardless of the wife’s consent. The only partial exception was introduced in the 2017 Independent Thought case, where the Supreme Court criminalized sex with a wife under 18.
Yet, marital rape of adult women remains legal, making India one of the few democracies where spousal rape is not a crime.
The Legal Challenge: Petitioners’ Arguments
Petitions filed by women’s rights activists, lawyers, and survivors argue that Exception 2:
- Treats married women as property, denying them sexual autonomy
- Violates Article 14 (equality), Article 15 (non-discrimination), and Article 21 (right to life and dignity)
- Is incompatible with the principles laid down in the Puttaswamy judgment (privacy) and Joseph Shine v. Union of India (adultery decriminalization)
- Fails to recognize marriage as a partnership of equals
One of the lead counsels argued:
“Marriage cannot be a license to harm. Consent must be central, inside and outside wedlock.”
Government’s Stand: Cautious, Yet Contested
In earlier affidavits, the Union Government opposed criminalizing marital rape, citing:
- Misuse of law and potential disruption to the institution of marriage
- Concerns over false cases, especially in divorce or custody battles
- That Indian society is not yet prepared for such a shift
However, following strong judicial scrutiny and growing public discourse, the government has now left it to the wisdom of the Court, avoiding a direct defense of the exception in recent hearings.
Delhi High Court’s Split Verdict and Supreme Court Intervention
In 2022, the Delhi High Court delivered a split verdict:
- Justice Rajiv Shakdher ruled the exception unconstitutional, stating that “a woman is not the sexual chattel of her husband”
- Justice C. Hari Shankar upheld the exception, reasoning that criminal law cannot enter the private realm of marriage
Due to the conflicting opinions, the matter was escalated to the Supreme Court, which has now decided to constitute a Constitution Bench, given the question’s importance to constitutional interpretation, gender justice, and criminal jurisprudence.
Global and Comparative Context
India remains an outlier. Over 150 countries have criminalized marital rape, including:
- The UK (1991), in the landmark R v R case
- Nepal (2002), one of the first in South Asia
- The US, where all 50 states now recognize spousal rape as a crime (though with varying thresholds)
UN Women, WHO, and the CEDAW Committee have repeatedly urged India to reform its rape laws to reflect consent-based and gender-just principles.
What the Bench Will Examine
The five-judge bench will consider:
- Does the marital rape exception violate Articles 14, 15, and 21?
- Can a constitutional right to consent override personal law or perceived sanctity of marriage?
- Should Indian criminal law treat marital and non-marital rape equally?
- Can safeguards against misuse be built into the law, rather than denying protection entirely?
Voices from Civil Society
Women’s rights groups, including the National Commission for Women (NCW) and All India Democratic Women’s Association (AIDWA), have supported the move, saying dignity does not dissolve upon marriage.
However, some men’s rights organizations and religious groups have opposed it, warning of legal overreach, family breakdown, and misuse.
What’s at Stake
- A decision in favor of criminalizing marital rape would reaffirm the primacy of consent in sexual relationships, regardless of marital status.
- It would also close a glaring gap in India’s rape laws, and offer protection and redress to millions of women currently left out of the legal framework.
- However, if the exception is upheld, it could be seen as a judicial setback for gender equality, contradicting recent progressive rulings on adultery, privacy, and LGBTQ+ rights.
Marriage Cannot Be a Cover for Violence
This Constitutional Bench review is not just a legal proceeding—it’s a moment of reckoning for Indian society and law. At its heart lies a simple, powerful idea: Consent does not expire with marriage.
As the Supreme Court hears this case, the eyes of the nation—and the world—are watching to see whether India will finally declare what should never have been in doubt: Rape is rape, even if the rapist is a husband.
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