Image Source : Hindustan Times
By : Saptarshi Roy, Arghyadeep Panda, Students, Xavier Law School


Rape in custody, date rape, campus rape, gang rape are the basic types but marital rape, or rape after marriage, has always been a contentious issue about whether or not it should be criminalized. Earlier women were considered as husband's property or father's property. So, if the women were raped then it would mean that to vandalize the property of the father or the husband. When India drafted the Indian Penal Code, the statute only explained the term ‘rape’ under sec. 375 of IPC but did not recognize the marital rape under the ambit of this section.


During 1900 BCE in Babylonia, sexual intercourse with anyone’s wife or daughter was punishable by death. It was believed that a daughter is a property of a father or husband. So, in many other countries, rape was considered as a property crime which means women were considered as a property. That is why the belief started from here that the husband cannot rape his wife since she is his property and he can do whatever he wants with her. As time passed, rape cases started to rise. This gave a rise to a belief that the father or the husband was considered to be responsible. It became their liability to protect the daughter or the wife since she cannot protect herself. There began a conservative thinking that the reputation of the husband defines the wife’s status since the wives were considered to be the property of the husbands. In the present, the Indian Penal Code states that the marital rape is not a crime under the exception 2 of sec. 375 of IPC. The section explained that sexual intercourse between a man and his wife who is not under the age of fifteen is not rape.


Sexual consent without the consent of the woman is rape but in case of a married woman, it is already considered to be an implied consent to indulge in sexual intercourse. Exception 2 of section 375 of the Indian Penal Code opposes Article 14 of the Indian Constitution. This is because it distinguishes between married and unmarried women. Following the Criminal Law (Amendment) Act, 2013 the age of consent for sexual intercourse was defined as 18 years under the definition of rape under section 375 of the IPC. This totally contradicts what is given in the exception 2 of sec. 375 of IPC. Though marital rape may falls under cruelty and Section 498A of IPC states about cruelty, but this section does not specifically help in criminalizing marital rape. Despite marital rape being an offence already under the Protection of Women from Domestic Violence Act, 2005, it does not act much of a help to criminalize marital rape. Exception 2 also violates a woman’s right to autonomy under Article 21 of the Constitution of India. After the incident of 2012 Delhi gang rape and murder case, Justice Verma Committee recommended to criminalize marital rape but the standing committee in the parliament replied by saying that this will cause a stress in the Indian family system and will create a state of disorder. 


In the case of Sakshi v. Union of India, (2004) the NGO questioned about the reason behind the sexual intercourse without the consent of wife to not be a punishable offence. The Supreme Court upheld the existing definition of rape under sec. 375 of IPC. There was no mention about marital rape and no alteration made in sec. 375 of IPC. In the case of Independent Thought v. Union of India and Anr., (2017) a child rights organization named Independent Thought filed a writ petition challenging exception 2 under the section 375 of IPC. The Supreme Court increased the age factor under exception 2 from 15 to 18 years and said that sexual intercourse by a man with his wife who is between the ages of fifteen years to eighteen years is rape. Though it was an important judgment for a particular age but it didn’t consider for the overall victims of marital rape. Justice JB Pardiwala gave his viewpoint in Nimeshbhai Bharatbhai Desai v. State of Gujarat, (2018) that criminalizing marital rape will send a message to everyone that it is not a privilege of the husband and that such crimes against women will not be accepted. On a recent case, Chhattisgarh High Court order stated that sexual act with wife is not rape even if it is forced therefore discharged a 37 year old man from the charge of marital rape.


According to the National Crime Records Bureau (NCRB), about 70% of women in India are victims of domestic violence. Marital rape is illegal in more than 100 countries, but India is one of the 36 countries in the world that has not done so. As a result, a modification to the Indian Penal Code, 1860 should be made to eliminate section 375, which protects Indian women from marital rape.


  1. Sally Gold & Martha Wyatt, The Rape System: Old Roles and New Times 696 (1978)
  2. Indian Penal Code, 1860, § 375
  3. Sakshi v. Union of India (2004), CR LJ 2881 (SC)
  4. Independent Thought v. Union of India and Anr. (2017), W.P. (Civil) No. 382 of 2013
  5. Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018), SCC OnLine Guj 732