A three-judge Bench of the Supreme Court (SC) led by Chief Justice of India D Y Chandrachud will soon hear Hrishikesh Sahoo v the State of Karnataka and decide the constitutionality of the marital rape exception (MRE) under the Indian Penal Code (IPC), 1860. Section 375 (exception 2) of IPC and now Section 63 (exception 2) of the “reformative” Bharatiya Nyaya Sanhita (BNS) continue to allow husbands to have sex with their wives against their will or without their consent. This stands as a glaring anomaly in the Indian criminal justice system that otherwise seeks to protect the bodily integrity and autonomy of individuals.
The issue arose in 2017 when Hrishikesh Sahoo, accused by his wife of multiple offences including rape and cruelty, invoked the MRE, which was rejected by the Karnataka High Court (HC), deeming the exception “regressive” and “discriminatory”, relying on the Justice J S Verma Committee report. This led to an appeal in the SC following a split verdict by the Delhi HC in 2022 and several new petitions.
While civil remedies exist under laws such as the Protection of Women from Domestic Violence Act (2005), these do not address the criminalisation of marital rape directly and are limited to “protection orders, judicial separation and monetary compensation”. The forthcoming judicial review presents an opportunity to eliminate a discriminatory legal relic that violates Articles 14, 15, 19, and 21 of the Constitution, potentially transforming women’s rights in India.
The effects of marital rape
While comprehensive data on marital rape remains scarce due to stigma, fear, shame, illiteracy, and legal barriers, available statistics are troubling. The National Family Health Survey (NFHS-5) reports that about one-third of married women (18-49 years) in India have experienced physical or sexual violence from their husbands. Marital rape strips women of their agency, reducing them to mere objects for sexual gratification within the marriage. It leads to severe psychological effects, including chronic depression, anxiety, PTSD, and suicidal tendencies. Physically, it can cause chronic pain, reproductive issues, and injuries that go untreated due to fear of further violence or social ostracism.
Among married women in India, more than 95 per cent who endured sexual violence identified their husbands/former husbands as the perpetrators (NFHS 5). What is even more concerning is that over 90 per cent of those who endured sexual violence did not seek help from anyone. It is often because they do not recognise it as a crime; rather it is seen as a husband’s “right”, reflecting entrenched gender roles. Abused women are frequently isolated from support networks and are economically dependent on their abusers: Only 27 per cent of married women are employed compared to 92 per cent of married men (NFHS 5). This makes it harder to leave or seek a divorce. In India, societal pressure to uphold the “sanctity of marriage” at all costs forces victims to endure abuse, which further alienates them.
Abusive marriages also harm children, who grow up in environments of fear and instability, causing anxiety, depression, and aggression that impact their long-term emotional and social development, according to the US Department of Health and Human Services.
The legal conundrum
The SC’s decision will revolve around three crucial questions. First, does the MRE violate a married woman’s right to equality by denying her the same legal remedies as unmarried women? By retaining this exception, the state creates two distinct classes of victims of non-consensual sex, providing unequal protection of the law, which fails the tests of “intelligible differentia” and “rational nexus”. This must be considered in light of the principle of “substantive equality” for removing “systemic or legal barriers”, to ensure that all women, regardless of marital status, receive equal protection against sexual violence. The Court could draw upon the doctrine of “transformative constitutionalism” — where constitutional interpretation drives social change — to hold that the MRE is anachronistic and incompatible with modern constitutional values. In this conflict between constitutional and social morality, the court should uphold the former, as it had done in the past.
India has seen a series of landmark judgments that have progressively expanded the rights of women, particularly where the black letter of the law was either silent or explicitly against them. For instance, the SC’s decisions in cases such as Vishaka v State of Rajasthan (1997), which established guidelines for preventing sexual harassment in the workplace; Independent Thought v Union of India (2017), which criminalised marital rape of minor wives (15 to 18 years); and Shayara Bano v Union of India (2017), where the practice of triple talaq was struck down as unconstitutional.
Further, on the question of equality within marriage, the MRE contradicts Article 15(1) of the Constitution, which prohibits sex-based discrimination. This exception upholds the outdated doctrine of coverture, a relic of English common law, which posited that a wife’s legal identity is subsumed under that of her husband upon marriage. While this doctrine has been dismantled in other areas, such as in the decriminalisation of adultery (Section 497 IPC), the MRE still denies women autonomy and consent within marriage. “Marriage in a constitutional regime is founded on the equality of and between spouses. Each of them is entitled to the same liberty which Part III guarantees…”, the SC held in Joseph Shine. The top court should build on this jurisprudence.
The third question concerns whether the exception violates a wife’s right to privacy under Article 21 of the Constitution. The Supreme Court’s ruling in K S Puttaswamy (2017) established privacy as a fundamental right, including bodily autonomy and sexual integrity. The MRE infringes on this right by denying married women the autonomy to refuse sex, thus violating their privacy. A parallel could be drawn to Navtej Singh Johar v Union of India (2018), where the apex court recognised that privacy includes the right to choose one’s partner and the nature of intimate relationships.
Moreover, Puttaswamy extends privacy protection to personal relationships, including marriage, free from state interference. Yet, the MRE represents a form of “negative” state action, where the state effectively sanctions the violation of a woman’s bodily autonomy by her husband, an infringement on her fundamental right to live with dignity as well.
The sanctity of family vs women’s rights: A false dichotomy
Opponents of criminalising marital rape, including the government, argue that it will threaten the “sanctity of family life”, claiming it could increase false allegations, disrupt marital harmony and undermine the institution of marriage itself. However, this argument is a smokescreen that ignores the lived realities of countless women. The sanctity cannot be preserved at the cost of women’s dignity, safety, and rights as true marital harmony is based on mutual respect and consent, not coercion or fear.
India’s retention of the MRE is an outlier and marks a regression in the global movement towards gender equality. It contradicts international human rights standards, including the Convention on the Elimination of All Forms of Discrimination Against Women — particularly Article 2(f) — which mandates the abolition of discriminatory laws and practices against women. Most advanced nations have criminalised marital rape, with the Soviet Union leading the way in 1922. Today, about 150 countries, including Singapore (2019), have made marital rape a criminal offence.
With the government firmly opposing the criminalisation of marital rape, the Court must iron out the flaws.
Singh is a final-year student at the Rajiv Gandhi National University of Law (RGNUL), Patiala, and Co-convener at the Centre for Constitutional Law and Governance at RGNUL
