Marriage: A Connection Of Hearts Or A License To Rape? A Suggestive And Comparative Analysis Of Marital Rape In The Indian Socio- Legal Context
- IJLLR Journal
- 1 hour ago
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Sagnik Banerjee, BBA LLB (Hons.), Amity Law School, Kolkata
ABSTRACT
Marital rape – the non-consensual sexual intercourse of a wife by her husband – remains uncriminalized in India under Exception 2 to Section 375 of the Indian Penal Code (IPC). This paper examines the doctrinal, constitutional, and human rights dimensions of this anomaly. It begins with an overview of the literature and international norms, tracing the historical roots of the marital rape exemption in Victorian-era coverture. We then analyze relevant statutes and case law: Section 375 IPC and its exceptions (including the narrow exception carved out by Independent Thought v. Union of India, which outlawed marital rape of wives under 18); ancillary statutes like Section 376B (rape during judicial separation), Section 498A (domestic cruelty), and the Protection of Women from Domestic Violence Act (2005), which recognizes forced sex as “sexual abuse” within marriage.
The constitutional analysis explores Article 14 (equality), Article 21 (life, liberty, dignity, privacy) and Article 15 (non-discrimination). We cite Supreme Court precedents (Suchita Srivastava, Puttaswamy, Joseph Shine, Independent Thought) to show that personal autonomy, bodily integrity, and privacy extend to married women. Through detailed case discussion we examine pivotal judgments: the English House of Lords in R v R (abolishing the spousal immunity in 1991), Indian High Courts (Nimeshbhai Desai v. State of Gujarat, RIT Foundation v. Union of India (Delhi HC, 2022 split verdict), Karnataka HC (Hrishikesh Sahoo v. State of Karnataka, 2022) and others).
Empirical context is discussed: violence against women in India is pervasive yet underreported; NCRB data show ~95% of reported rapes involve known assailants (often family). We address counter-arguments (risk of misuse, evidentiary issues, the sanctity of marriage) and rebut them, noting that other legal remedies (DV Act, cruelty) are inadequate substitutes for criminal justice.
Finally, we propose a model legislative amendment: repealing Exception 2 to Section 375, inserting a standalone marital rape provision, and defining “consent” clearly. A comparison table of five jurisdictions and a mermaid timeline of key developments are appended. Our conclusion urges the Parliament to criminalize marital rape in line with constitutional morality, gender equality, and India’s international commitments.
