CJP analyses India’s contradictory jurisprudence: SC takes cognisance of petitions demanding criminalising of marital rape New petition challenges Exception 2 to Section 375, that has done away with ingredient of ‘consent’

11, Jan 2023 | Tanya Arora

On January 9, the Supreme Court tagged and issued notice on a plea seeking to strike down the provision providing blanket immunity to such husbands who commit the crime of rape on their wives. As per the Exception 2 to Section 375 of the Indian Penal Code, a husband stands immune of criminal charges for non-consensual sex with wife (above the age of 15 years) in a marital relationship.

Section 375 of the IPC sets out the ingredients of the crime of rape, along with the all the penetrative, non-penetrative and non-consensual acts that fall under the ambit of rape. Rape is defined as sexual intercourse with a woman against her will, without her consent, or in circumstances under which her consent is vitiated. The said exception to the provision states that forced sexual intercourse committed by a man with his wife is not rape unless the wife is below 15 years of age.*

A notice was sent to the Centre and the plea was listed with other outstanding petitions by the Supreme Court bench that was presided over by Chief Justice D.Y. Chandrachud and Justice P.S. Narasimha. Ruth Manorama, a Dalit, anti-caste, and women’s rights activist, had filed this present petition through Advocate-on-Record Ruchira Goel. Ruth Manorama, the petitioner, received the Right Livelihood Award for her work in 2006. Manorama asserted that she had dedicated her life to promoting women’s equality and the rights of people from socially and economically disadvantaged groups.

The petitioner stated that she was driven by her conscience to petition the Supreme Court since the current legal system disadvantages and excludes women across the nation who are raped by their spouses forcibly, leaving them without any legal recourse to legal action or protection under anti-rape laws. In her petition, the petitioner had said that the marital rape exception, which does not recognize a husband raping a wife as “rape,” legitimizes and protects a man’s marital right to his wife’s body. This legally backed dominance has an impact on women who endure daily physical, mental, and emotional anguish as a result of the impunity of rape laws. The exemption still exists in the statute books notwithstanding the development of the law and the constitutional acknowledgement of the equality of men and women, even in marriage.

Although society recognizes rape as an atrocious and brutal act, the vast majority of jurisdictions in the India deny an entire class of women- married women- the protection of criminal rape laws. The common law rule that a husband cannot rape his wife has been codified in statutory provisions which, in effect, exempt a class of perpetrators- married men- from prosecution for rape. It is also pertinent to note, that this blanket immunity deems consent, or lack thereof, as a moot point.

A delayed yet welcome move by the Supreme Court

The above-mentioned move of the Supreme Court came after months of waiting. On September 9, 2022, the Supreme Court had adjourned a batch of petitions arising out of the Delhi High Court’s split verdict on the issue of criminalisation of marital rape on September 16. Two petitions arising out of the Delhi high court’s split verdict had come up for hearing before a bench comprising Justices Ajay Rastogi and BV Nagarathna. During the hearing, the Bench said that it would tag all similar matters together.

These petitions are being filed in the Supreme Court following the Delhi High Court’s divided decision from May 11. The Court reached a decision, with one judge advocating the reading down of the legal exemption protecting spouses from prosecution for forced marital sex on their wives, while the other judge refused to declare it unconstitutional. However, given that the case includes important legal issues that the Supreme Court must decide, both judges had concurred in giving the certificate of permission to appeal to the apex Court.

According to Justice Rajiv Shakdher, one of the judges who gave the Delhi High Court judgement, it is unconstitutional to shield the husband from prosecution for the crime of marital rape. He ruled that the exception 2 of the IPCs 375 and 376B was invalid since it violated Article 14. Justice C. Hari Shankar, however, declared that he disagrees with Justice Shakdher. According to Justice Harisankar, Section 375’s Exception 2 is not unconstitutional and is founded on an understandable difference. The issue raised by the current appeal for review in the Supreme Court is whether section 375(2)’s exclusion for marital rape from the crime of rape is unconstitutional and in violation of articles 14, 15, and 21.

The inconsistencies in judgments delivered by High Court in Marital Rape

It has become increasing essential for the Supreme Court to conduct the hearing over the issue of Marital Rape, and deliver a judgment criminalising the same, as an inconsistency can be found in judgments delivered by various High Courts of India. As even the Delhi Court delivered a split judgment on the issue of marital rape, there is still no guiding principle for the High Courts and the lower courts to follow. Thus, while one progressive judge holds the crime of marital rape to fall under the ambit of rape, the same opinion may not be upheld by some other court or another judge of the same court.

In August 2021, the Kerala High Court, in a landmark judgement, held marital rape to be a form of cruelty and a valid ground for divorce. The Division bench of Justices A Muhamed Mushtaque and Dr Kauser Edappagath held that a husband’s licentious disposition disregarding the autonomy of the wife is a marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty, under the Hindu personal law. The court had further said that any disrespect or violation of bodily integrity is a violation of individual autonomy and in matrimony, a spouse possesses such privacy as an invaluable right inherent in him or her as an individual. The court also held that marital privacy is intimately and intrinsically connected to individual autonomy and any intrusion into such space would diminish privacy which would essentially constitute cruelty.

In contrast to this, in May 2021, the Allahabad High Court, while granting anticipatory bail to a lawyer accused of rape, observed that the allegation of rape against the applicant becomes false once marriage is admitted, observed the Allahabad High Court. Justice Siddharth was hearing an anticipatory bail of the accused, noting that the survivor “clearly got involved in a sexual relationship with him” and that she also admitted that he had married her later in Pashupati Nath temple, Nepal. The judge then held that the allegation of marriage is admitted, the allegation of rape against the applicant becomes false once marriage is admitted. In case dispute arose between the parties after marriage it cannot be covered by allegation of rape.

The Karnataka High Court, in its judgment dated March 23, 2022, rejected the petition of a husband which sought to drop the rape charges, pressed against him by his wife. The Court said, “The exception now is of sexual intercourse and other sexual acts by the husband stand exempted. Therefore, a woman being a woman is given certain status; a woman being a wife is given a different status. Likewise, a man being a man is punished for his acts; a man being a husband is exempted for his acts. It is this inequality that destroys the soul of the Constitution which is Right to Equality. The Constitution recognizes and grants such equal status to woman as well.”

Supreme Court’s stand on inclusion of Marital Rape under Medical Termination of Pregnancy Act and Rules

In its judgment on women’s access to abortion, in the case of X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT of Delhi, the Supreme Court’s bench headed by Justice DY Chandrachud ruled that “marital rape” must be included in the definition of rape for the purposes of the Medical Termination of Pregnancy Act and Rules. According to the Court, wives who became pregnant as a result of their husbands forcing them into sexual activity will also fall under the definition of “survivors of sexual assault or rape or incest” as stated in Rule 3B(a) of the Medical Termination of Pregnancy Rules. In order to provide context, Rule 3B(a) lists the types of women who may request pregnancy termination between 20 and 24 weeks.

However, the bench clarified that including marital rape within the meaning of rape was solely to be interpreted for the purpose of the MTP Act ie related to the rights access to abortion.

The Parliament’s stand

On October 11, 2017, the Supreme Court pronounced a judgement that any intercourse or sexual act by a man with his wife below the age of 18 years will be considered as rape. The verdict came in on the case of Independent Thought vs Union of India, wherein a plea was filed challenging the exception to the rape law that permits intercourse or sexual act by a man with his wife, not below 15 years, even as the age of consent was 18 years.

In the said case, the bench of tur apex court, comprising of Justices Madan B Lokur and Deepak Gupta had held that Exception 2 to Section 375 of the Indian Penal Code (IPC) – which exempts marital rape of girls between the age of 15 and 18 from the purview of rape – is violative of Article 14, 15 and 21 of the Constitution.

The conflict between the child marital rape exception and POCSO had a significant outcome of the case, as under POCSO, any sexual act with a child under the age of 18 years is a criminal offence. This became grounds for the court to not only hold that there was an arbitrary distinction in the way married minor girls were being treated, but also that the IPC provision would be overridden as regards minor girls, as required by S.42A of POCSO.

It is pertinent to note that, even though the last amendment to the IPC was passed by the Lok Sabha and Rajya Sabha in July and August 2018 respectively, the Exception 2 to the Section 375 has not yet been amended. In other words, the Exception 2 to Section 375 is still worded as “sexual intercourse by a man with his wife is not rape, unless the wife is below 15 years of age” instead of 18 years. The reason behind this selective amendment is not clear. There has been no mention of the said misstep by the court too. While the landmark judgment of the SC still stands, it is worth questioning why the Parliament has overlooked the inclusion of said amendment to the Indian Penal Code, one of the main criminal legislations of our country.

Even during the hearing of case in the Delhi High Court seeking criminalisation of marital rape, a non-committal approach of the Union government was visible. The Centre repeatedly requested the Court to defer the hearing saying that it is undertaking a consultative process to review the IPC provisions. However, the High Court refused to accept the request saying “there is no terminal date when the consultation process will get over” and proceeded to reserve judgment after hearing the parties.

Thus, the question that arises is, how far will these efforts of the courts go when Indian Parliament has not even implemented the judgments and decisions given in the past? How long will this fight for bodily autonomy go before dignity of married women is legally guaranteed?

Now notice to the Centre has been issued. One of the main arguments forwarded by the Centre while opposing the petitions challenging the constitutionality of the above-mentioned exception, was that if marital rape were to be a criminal offence, it would destabilise the institution of marriage and become a fresh tool to harass married men. The principal concern seems to be that abolition of the husband’s immunity would lead to serious abuses of the law (e.g., false rape charges), while the issue of women who were suffering has not been paid much heed to. How differently will the Centre respond to the notice of the Supreme Court this time? Will there actually be any real, substantive change?


The battle against this discriminatory provision has been an ongoing on and arduous one. The Indian Penal Code was framed during colonial rule and no substantive re-appraisal of offences, crimes and approach has really been undertaken post Independence. Amendments have been piecemeal.

In the instant case, while all other men who commit crimes against women are punished, an exception for the husband is made out in Section 375. This exception and its implication, which treats a woman as a submissive and non-autonomous of  her husband begs re-interpretation guvrb the structural inequality even within the institution of marriage. Time then is for a consistent approach that frames and upholds the crime of marital rape.

Several nations have criminalised the offence, defining it as marital or spousal rape. It is high time that India follows their footsteps, given its high aspirational position in the League of Nations, internationally.

Image Courtesy: newsclick.in


Still no move on marital rape by the Centre
Karnataka HC refuses to drop rape charges against husband
Marital rape can be grounds for divorce: Kerala HC
Why Indian courts tip toe around issue of marital rape
SC stirs the hornet’s nest on rape by intimate partner
Marital Rape: Supreme Court to hear batch of petitions on September 16



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