The Supreme Court of India has reopened the contentious debate over criminalising marital rape, issuing notices and setting the stage for a detailed hearing on whether the exception carved out in the Indian Penal Code's rape provision survives constitutional scrutiny.
Under Section 375 of the IPC, sexual intercourse by a man with his own wife is not considered rape, provided the wife is above the age of 18. This exception has been criticised for decades by women's rights groups, legal experts, and human rights organisations as a statutory endorsement of impunity for husbands who commit sexual violence against their wives.
During the hearing, Justice Joymalya Bagchi made a pointed remark that marriage cannot be interpreted as meaning the "extinction of a woman's autonomy." The observation signaled the Court's willingness to engage substantively with the question of whether a married woman's right to bodily integrity deserves the same legal protection as that of an unmarried woman.
The marital rape exception in Indian law traces its origins to colonial-era legislation drafted by British legal reformer Lord Macaulay in the 1860s. At the time, the rationale offered was grounded in the outdated legal fiction that a husband and wife formed a single person under the law, with the wife's legal identity subsumed by the husband's. Modern legal scholars have consistently described this foundation as incompatible with the Constitution of India, which guarantees equality, dignity, and fundamental rights to every citizen regardless of marital status.
Petitioners appearing before the Court have argued that the exception violates Articles 14, 15, and 21 of the Constitution — guaranteeing equality, prohibiting discrimination on the basis of sex, and protecting the right to life and personal liberty, respectively. They have also pointed to rulings by several high courts and international human rights bodies that have called the exemption discriminatory.
Opposing views, primarily advanced by some intervenors and government counsel in earlier hearings, have cautioned that immediately striking down the exception could create enforcement challenges and urged a more gradual legislative approach. However, the tone of the latest proceedings suggests the Court is inclined to take a firmer stance.
India remains one of the few countries where marital rape is not fully criminalised. While the protected age of the wife was raised from 15 to 18 in 2017 following a Supreme Court verdict, the core exception remains intact. Legal activists say the Court's renewed engagement could finally deliver long-denied justice to thousands of women affected by spousal sexual violence.
