Regressive Step Instead of Progressive One, Disregard to Human Rights: De(Criminalisation) of Marital Rape

“I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a woman to hate her husband, I would hate him as a rapist.” ― Philippa Gregory, The Red Queen

Unfortunately, despite being the biggest democracy in the world India is one of few countries in the world that still doesn’t criminalises marital rape and explicitly decriminalises it with Exception 2 of Section 375 of Indian Penal Code (IPC). Relying on this legislation a regressive judgment, dated  06.12.2023, in which Allahabad High Court ruled that Marital Rape is not a crime yet and a husband cannot be punished for the offence of rape against his wife if she is aged 18 years or above. This undermines the notion of human rights and fosters the archaic patriarchal notion that once women enter into matrimony a man is allowed to treat “his chattel as he deemed appropriate.” Unravelling the Regressive Step

Recently, Allahabad High Court held that protection of a person from marital rape continues partially under Exception 2 of section 375 of the IPC (“Exception 2”), and thus, the court acquitted a husband from charges of “unnatural offence” (section 377 IPC) against his wife. The Allahabad High Court reiterated the view adopted by Madhya Pradesh High Court, which ruled that in the amended definition section 375 IPC there’s no room for any “unnatural offence” to take place between husband and wife section 377 IPC. The presumption that the victim’s marriage and relationship with the offender should take precedence over the legal need for consent to sexual acts is seriously flawed and flagrantly breaches the woman’s fundamental rights.

This decision is a set-back and undermines the fundamental rights of women enshrined in article 21 of the Indian Constitution, as well as the right to privacy, right to sexual autonomy, and the right to bodily integrity. Notably, the Law Commission of India in its 172nd report opined that marital rape should not be criminalised as “that may amount to excessive interference with marital relationship.” It’s heart wrenching to see that even in today’s era, when India is a signatory to CEDAW, the mindset of all Indians is not that liberal as demonstrated by the prevalence of patriarchal values and beliefs in Indian society today. A logical question arises as to why marital rape is not criminalised in India? The Parliamentary Standing Committee on Home Affairs has in the past already rejected the recommendation made by the Justice Verma Committee in 2013 to remove the marital rape exception in the IPC. The Standing Committee opined that criminalising marital rape could intrude on the privacy of marital relationships, potentially leading to false accusations and strained family dynamics by putting the entire family system under “great stress.” Critics of removal of the exception also argue that legal intervention might undermine traditional values and exacerbate marital discord.

Legal Position: Judicial View

It’s not the first time judiciary has chosen a regressive approach which negates the tenets of fundamental rights, including women’s rights. Marital rape has emerged as one of India’s most concerning problems. In response, the judiciary has, at times, intervened on this delicate subject in an erratic and chaotic manner. In the Dilip Pandey case, the Chhattisgarh High Court ruled that a lawfully married man’s sexual acts, even those carried out without the consent of the victim, are not crimes of rape.

The position of Indian courts regarding the legality of marital rape in India is clearly violating the human rights of women. However, recent judicial activism is indicative of slow change. The Gujarat High Court ruled that marital rape is a disgraceful offence, Kerala High Court held that marital rape is a sufficient ground for granting divorce, and in a much awaited decision of Delhi High Court regarding the legality of marital rape exception, the division bench issued a conflicting opinion where Justice Shakdher ruled that the exception is unconstitutional, but Justice Shankar maintained a regressive view by upholding the exception’s constitutional validity on the basis of the sacred institution of marriage. It’s time to abandon regressive practices, founded upon a patriarchal mindset, which undermine the basic human rights of women.

Unfortunately, as of yet, the Supreme Court of India (“Supreme Court”) has not rendered a decision regarding the validity of marital rape. However, in a progressive step, Exception 2 was partially struck down in the case of Independent Thought v. Union of India. The Supreme Court found that a husband who rapes his wife who is a minor cannot be exempted from prosecution. While Exception 2 was challenged in its entirety in the case in question, the scope of the issue was subsequently limited to girl children aged between 15 to 18 years. The Prevention of Children from Sexual Offences Act, 2012 prevailed, with the Court holding that the marital rape exception is not applicable in cases where the age of the girl is between 15 and 18 years, as excusing the marital rape of minors was contrary to Articles 14, 15 and 21 of the Indian Constitution.

Violation of International Law and Illogical facets

India is a party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and has an obligation to protect the rights and bodily autonomy of women. Marital rape violates Article 1 of CEDAW as it allows for sexual violence to be perpetrated against women on the basis of their marital status. Furthermore, Article 2 is also violated as the Indian state fails to adhere to its obligation to eliminate discrimination against women. Notably, the marital rape exception is prohibited under paragraph 29 of General Recommendation 35 of CEDAW, and the failure on part of the Indian government to criminalise it is de facto permission for this offence and a failure of the due diligence obligation under General Recommendation 19 of CEDAW. Marital rape also violates the right to life, which is part of customary international law and explicitly outlined in human rights treaties like the UDHR, ICCPR (Art. 6), as well as the Indian Constitution (Art. 21).

Ironically, marital rape has a civil remedy in India under the Protection of Women from Domestic Violence Act, 2005 under the ambit of sexual violence as form of domestic violence. In matrimonial law is it also allowed as a ground for divorce. Further, the Medical Termination of Pregnancy Act, 1971 (MTPA) permits abortion if pregnancy is due to rape. It is ridiculous that the Indian Parliament, under the MTPA, acknowledges outright that marital rape causes irreversible injury, but declines to make it a crime under the IPC.

What lies ahead?

The Allahabad High Court’s decision raises concerns with regard to its impact on the safeguarding women’s autonomy and their rights in marriage. Removing the marital rape exception will establish a normative standard for consensual conduct in marriage that would be consistent with the fundamental rights of women. As of now the legislature and courts have both fallen short in defending the rights of married women. All eyes are now set on the Supreme Court’s pending decision on challenge to the marital rape exception in Hrishikesh Sahoo case.

The Supreme Court’s evaluation of the ongoing petition contesting the marital rape exception, Exception 2, can help to reframe and reaffirm justice, equality, and the protection of individual rights within the context of marriage. Legislative reluctance to criminalize marital rape perpetuates human rights violations against married women, allowing men to assault without consequences. I end with this poem authored by myself:


In the tapestry of justice, a vital thread unfurls,

Where silence meets courage, and the outcry swirls.

In the sacred vows of matrimony, a plea is sown,

To criminalize the shadows, where consent’s overthrown.

No sanctuary in intimacy, without consent’s embrace,

For love should never shroud, a victim’s pained face.

In the courtroom of compassion, let justice be defined,

Where marital rape’s dark echoes are forever consigned.

Shelal L. RajputShelal L. Rajput is an ultimate year student reading law [B.B.A LL.B (H)] from Symbiosis Law School, Pune. He loves to write and explore the nuances of law from a socio-legal perspective. While having a great interest in the subject of constitutional, environmental and public aspects of law along with corporate and commercial laws. He loves to write on issues of social and political importance in the context of international relations. Further, he is eager to learn new skills and is a technology enthusiast who explores the intersection of law and technology at present. 

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