Criminalization Of Marital Rape: A Constitutional Debate
- IJLLR Journal
- Apr 4
- 2 min read
Sneha Gaur, Manav Rachna University
INTRODUCTION
Marriage, in Indian society, has traditionally been regarded as a sacred and inviolable institution. The union between two people establishes a relationship which involves mutual respect and shared responsibilities. The law needs to address challenging issues when domestic violence becomes a form of forced marriage. One such question—long avoided yet increasingly urgent—is whether non-consensual sexual intercourse by a husband with his wife should constitute rape under Indian criminal law. The Indian Penal Code from 1860 defines rape through Section 375 which contains Exception 2 to state that a man cannot commit rape when he has sexual intercourse with his wife who has reached the age of 18. This marital rape exception exists as a colonial leftover which maintains the legal principle that married partners give everlasting consent to sexual relations. The Adult married women protection law from 2013 continues to enforce its exception which protects adult married women from sexual assault despite major legal changes which followed the Criminal Law (Amendment) Act. The judiciary has received a challenge regarding the constitutional validity of this exception which is currently being reviewed by the Supreme Court of India. The matter requires us to study how criminal law interacts with constitutional rights and gender equality and the developing understanding of marriage. This article provides a critical examination of the constitutional debate about India's marital rape criminalization from the perspective of a final-year law student. The study investigates the historical foundations and constitutional provisions and judicial precedents and comparative perspectives and the social and legal effects of maintaining or abolishing the marital rape exception.
HISTORICAL BACKGROUND
The marital rape exception finds its origin in English common law. Sir Matthew Hale established in the 17th century that a husband could not face rape charges for having sexual relations with his wife because marriage established permanent sexual consent between them.
