The Legal Lock


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Marital rape and India

Domestic violence in India is a long-standing problem that has only gotten worse in recent years, according to experts. As per National Crime Records Bureau’s (NCRB) annual report, “Crime in India,” around 70% of Indian women are victims of domestic abuse.

Among the manifestations of this domestic violence is rape within the home. A popular method of degrading and disempowering women is through marital rape, which is the act of coercing your partner into having sexual relations with you without their permission.

Today, more than 100 nations have passed legislation criminalising marital rape; however, India is one of only 36 countries in which this crime has not been criminalised.

Even though various legislative reforms have been made to criminal law to protect women, the non-criminalization of spousal rape in India continues to damage the dignity and rights of women in this country.

Legal Provisions:

Raped covers all forms of sexual assault that involve non-consensual physical contact with a woman, according to the definition of rape specified in Section 375 of the Indian Penal Code (“IPC”). Section 375, however, provides an exception to the definition of “rape” in Section 375, which exempts unwanted sexual contact between a husband and his wife over the age of fifteen from the definition of “rape” and so protects such actions from prosecution. 

After entering into marital relations, a wife is believed to have given her perpetual agreement to have sexual relations with her husband, according to contemporary law. While practically every nation in the world recognises that unwanted sexual contact between a husband and his wife is a criminal violation.

Writ challenges against this provision are now being filed with the Supreme Court of India and different high courts around India, and is a landmark decision, India’s Supreme Court criminalised undesired sexual intercourse with a spouse between the ages of fifteen and eighteen. As a result of this decision, there has been an increase in the number of writs filed contesting the legality of Exception 2 as a whole. In light of pending litigation, this article examines the legality of Exception 2 from a critical perspective.

The doctrine of coverture

The doctrine of coverture which refers to the non-criminalization of marital rape dates back to the British era. The doctrine of merging a woman’s identity with that of her husband had a significant influence on and derived from the practice of marital rape in large part.

When the Indian Penal Code (IPC) was conscripted in the 1860s, a married woman was not regarded to be a separate legal entity from her husband.

A Victorian patriarchal society in which men and women were not treated equally, married women were not allowed to own property, and the identities of husband and wife were merged under the doctrine of coverture informed the development of the marital exception to the crime of torture in the IPC.

Section 375 of the Indian Penal Code is violated in the following ways:

It is the objective of Section 375 of the Indian Penal Code to protect women and to punish those who commit the horrible crime of rape.

Although it may seem counterintuitive to that goal, exempting spouses from punishment is completely incompatible with it because the effects of assault would be the same whether a woman is wedded or not.

Furthermore, since they are economically and morally entangled with their spouses, married women may really find it harder to flee abusive relationships at home than unmarried women.

Article 21 has been violated:

For example, the Supreme Court has given a novel meaning to Article 21, which protects the rights to healthcare and privacy as well as decency and the right to live in secure conditions in a comfortable place (among other things).

The Supreme Court of India declared in the case of State of Karnataka v. Krishnappa that physical assault, in addition to being a demeaning act, is an unjust incursion into a female’s right to privacy and sanctity. According to the same ruling, non-consensual sexual contact constitutes both physical and sexual assault against the individual.

In the case of Suchita Srivastava v. Chandigarh Administration, the Supreme Court of India held that the right to make decisions about sexual behaviour is inextricably linked to the rights to individual rights, confidentiality, decency, and physical integrity guaranteed by Article 21 of the Indian Constitution.

The Supreme Court of India, in the case of Justice K.S. Puttuswamy (Retd.) v. Union of India, recognised the right to privacy as a basic right of all citizens.

The right to privacy includes the ability to make intimate decisions, which include decisions about one’s sexual or inborn nature, as well as decisions about intimate relationships, according to the International Covenant on Civil and Political Rights. In all of these decisions, the Supreme Court has acknowledged the right of all women, regardless of their marital status, to abstain from sexual activity as a fundamental right guaranteed by Article 21 of the Indian Constitution.

As a result, forced sexual cohabitation constitutes a breach of the basic right guaranteed by Article 21 of the Constitution.


Indian law currently recognises distinct and separate legal identities for husbands and wives, and most of the jurisprudence written in the contemporary age is particularly dedicated to the security of women’s rights.

As a result, it is high time for the government to recognise this constitutional weakness and incorporate marital rape within the ambit of rape legislation by repealing Section 375 (Exception 2) of the Indian Penal Code.