The definition of rape codified in Section 375 of the Indian Penal Code (“IPC”) includes all forms of
sexual assault involving nonconsensual intercourse with a woman.[2] However, Exception 2 to Section
375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from
Section 375’s definition of “rape” and thus immunizes such acts from prosecution. As per current law, a
wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital
relations. While unwilling sexual contact between a husband and a wife is recognized as a criminal
offense in almost every country of the world, India is one of the thirty-six countries that still have not
criminalized marital rape.[3] The Supreme Court of India and various High Courts are currently flooded
with writ petitions challenging the constitutionality of this exception, and in a recent landmark
judgment, the Supreme Court criminalized unwilling sexual contact with a wife between fifteen and
eighteen years of age.[4] This judgment has in turn led to an increase in other writs challenging the
constitutionality of Exception 2 as a whole. In light of ongoing litigation, this Article critically analyses the
constitutionality of Exception 2.
Violation of Article 14 of the Indian Constitution
Article 14 of the Indian Constitution ensures that “[t]he State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India.”[5] Although the
Constitution guarantees equality to all, Indian criminal law discriminates against female victims who
have been raped by their own husbands.
At the time the IPC was drafted in the 1860s, a married woman was not considered an independent
legal entity. Rather, she was considered to be the chattel of her husband.[6] As a result, she did not
possess many of the rights now guaranteed to her as an independent legal entity, including the right to
file a complaint against another under her own identity.[7] Exception 2, which essentially exempts
actions perpetrated by husbands against their wives from being considered acts of “rape,” is largely
influenced by and derived from this already existing doctrine of merging the woman’s identity with that
of her husband.
The roots of this doctrine can be traced to British colonial rule in the Victorian era.[8] India was a British
colony during the 19th century. All Indian laws enacted at this time were deeply influenced by English
laws and Victorian norms. The marital exception to the IPC’s definition of rape was drafted on the basis
of Victorian patriarchal norms that did not recognize men and women as equals, did not allow married
women to own property, and merged the identities of husband and wife under the “Doctrine of
Coverture.”
But times have changed. Indian law now affords husbands and wives separate and independent legal
identities, and much jurisprudence in the modern era is explicitly concerned with the protection of
women. This concern is evident in the plethora of statutes intended to protect women from violence
and harassment that have been passed since the turn of the century, including “The Protection of
Women from Domestic Violence Act” and the “Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act.”[9]
Exception 2 violates the right to equality enshrined in Article 14 insofar as it discriminates against
married women by denying them equal protection from rape and sexual harassment. The Exception
creates two classes of women based on their marital status and immunizes actions perpetrated by men
against their wives. In doing so, the Exception makes possible the victimization of married women for no
reason other than their marital status while protecting unmarried women from those same acts.
Exception 2’s distinction between married and unmarried women also violates Article 14 insofar as the
classification created has no rational relation to the underlying purpose of the statute. In Budhan
Choudhary v. State of Bihar[10] and State of West Bengal v. Anwar Ali Sarkar[11], the Supreme Court
held that any classification under Article 14 of the Indian Constitution is subject to a reasonableness test
that can be passed only if the classification has some rational nexus to the objective that the act seeks to
achieve. But Exception 2 frustrates the purpose of Section 375: to protect women and punish those who
engage in the inhumane activity of rape. Exempting husbands from punishment is entirely contradictory
to that objective. Put simply, the consequences of rape are the same whether a woman is married or
unmarried. Moreover, married women may actually find it more difficult to escape abusive conditions at
home because they are legally and financially tied to their husbands. In reality, Exception 2 encourages
husbands to forcefully enter into sexual intercourse with their wives, as they know that their acts are
not discouraged or penalized by law. Because no rational nexus can be deciphered between the
classification created by the Exception and the underlying objective of the Act, it does not satisfy the test
of reasonableness, and thus violates Article 14 of the Indian Constitution.
Violation of Article 21
Exception 2 is also a violation of Article 21 of the Indian Constitution.[12] Article 21 states that “[n]o
person shall be denied of his life and personal liberty except according to the procedure established by
law.” The Supreme Court has interpreted this clause in various judgments to extend beyond the purely
literal guarantee to life and liberty. Instead, it has held that the rights enshrined in Article 21 include the
rights to health, privacy, dignity, safe living conditions, and safe environment, among others.
In recent years, courts have begun to acknowledge a right to abstain from sexual intercourse and to be
free of unwanted sexual activity enshrined in these broader rights to life and personal liberty. In The
State of Karnataka v. Krishnappa, the Supreme Court held that “[s]exual violence apart from being a
dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.”[13] In the
same judgment, it held that non-consensual sexual intercourse amounts to physical and sexual violence.
Later, in Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the right to make
choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity
under Article 21 of the Constitution.[14]
Most recently, the Supreme Court has explicitly recognized in Article 21 a right to make choices
regarding intimate relations. In Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court
recognized the right to privacy as a fundamental right of all citizens and held that the right to privacy
includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of
one’s sexual or procreative nature and decisions in respect of intimate relations.”[15] Forced sexual
cohabitation is a violation of that fundamental right.[16] The above rulings do not distinguish between
the rights of married women and unmarried women and there is no contrary ruling stating that the
individual’s right to a privacy is lost by marital association. Thus, the Supreme Court has recognized the
right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental
right conferred by Article 21 of the Constitution.
Additionally, Exception 2 violates Article 21’s right to live a healthy and dignified life. As mentioned
above, it is well settled that the “right to life” envisaged in Article 21 is not merely a right to exist. For
example, there can be no dispute that every citizen of India has the right to receive healthcare or that
the state is required to provide for the health of its constituents.[17] In this vein, the courts have
repeatedly held that the “right to life” encompasses a right to live with human dignity.[18] Yet the very
existence of Exception 2, which fails to deter husbands from engaging in acts of forced sexual contact
with their wives, adversely affects the physical and mental health of women and undermines their
ability to live with dignity.
The above conclusions clearly reflect that Exception 2 to Section 375 of the IPC is an infringement of
Articles 14 and 21 of the Constitution. It is time that Indian jurisprudence understands the inhumane
nature of this provision of law and strikes it down.
Footnotes
[1] Sarthak Makkar is a second-year student at Gujarat National Law University, India. He serves as an
editor for The GNLU Law Review, associate editor of the GNLU Journal of Law and Economics and
Student Editor for Supremo Amicus. He has previously interned at the Supreme Court of India with
Senior Advocates Mr. Jayant Bhushan and Ms. Geeta Luthra and at Nishith Desai Associates.
[2] Indian Penal Code § 375, No. 45 of 1860, India Code.
[3] Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016.
[4] Independent Thought v. Union of India, (2013) 382 SCC (2017) (India).
[5] India Const. art. 14.
[6] To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6) Harv. L.
Rev. 1255, 1256 (1986).
[7] See generally id.
[8] Jill Elain Hasday, Consent and Contest: A Legal History of Marital Rape, 88 Calif. L. Rev. 1373 (2000).
[9] Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India);
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, No. 14,
Acts of Parliament, 2013 (India).
[10] Budhan v. State of Bihar, AIR (1955) SC 191 (India).
[11] State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75 (India).
[12] India Const. art. 21.
[13] The State of Karnataka v. Krishnappa, (2000) 4 SCC 75 (India).
[14] Suchita Srivastava v. Chandigarh Administration, (2008) 14 SCR 989 (India)
[15] Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161 (India).
[16] as “Right to abstain” from sexual intercourse is a long recognized principle of Indian Constitutional
jurisprudence . Govind v. State of M.P, AIR (1975) SC 1378 (India); Kharak Singh v. State of U.P, (1963)
AIR SC 1295 (India).
[17] Regional Director ESI Corpn. v. Francis de Costa, 1993 Supp (4) SCC 100; 5 D.D. Basu, Commentary
on the Constitution of India, 4711 (LexisNexis 2015).
[18] C.E.S.C. Ltd. v. Subhash Chandra, (1992) 1 SCC 441 (India).