All forms of sexual assault involving non-consensual contact with a woman are included in the definition of rape codified in Section 375 of the Indian Penal Code.

Exception 2 of Section 375, on the other hand, exempts reluctant sexual intercourse between a husband and a wife over the age of fifteen from the definition of “rape” under Section 375, and so protects such actions from prosecution.

A wife is presumed to give her husband eternal agreement to have sex with her; After entering into marital intercourse. While practically every country in the world recognizes unwanted sexual contact between a husband and a wife as a crime. India is one of the thirty-six countries that have yet to prosecute marital rape.

The Supreme Court of India and several High Courts are being inundated with writ petitions questioning the legitimacy of this provision. The SC recently criminalized undesired sexual contact with a wife between the ages of 15 and 18 in a landmark decision.

As a result of this decision, other writs contesting the constitutionality of Exception 2 have been filed. This article examines the constitutionality of Exception 2 in light of pending litigation.


The State shall not deny to any individual within the territory of India equality before the law or equal protection of the laws, according to Article 14 of the Indian Constitution.

Despite the fact that the Indian Constitution provides equality to all people. Indian criminal law discriminates against women who have been raped by their own husbands.

A married woman was not regarded as an autonomous legal person when the Indian Penal Code was established in the 1860s. Rather, she was thought to be her husband’s chattel.

Exception 2, which basically exempts husbands’ activities against their wives from being deemed acts of rape; is heavily inspired by and; drawn from the previously existent theory of integrating the woman’s identity with that of her husband.


The origins of marital rape may be traced back to the Victorian-era British colonial administration. During the nineteenth century, India was a British colony. At this period, all Indian laws were heavily affected by English laws and Victorian standards.

The marital exemption to the IPC’s definition of rape was created in response to Victorian patriarchal traditions that denied men and women equality, barred married women from owning property, and combined husband and wife identities under the “Doctrine of Coverture’s.”

However, the times have changed. Husbands and wives now have separate and independent legal identities under Indian law, and; much current jurisprudence is expressly focused on women’s protection.

This concern is reflected in the multitude of legislation enacted since the turn of the century to protect women from violence and harassment, such as The Protection of Women from Domestic Violence Act and Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013.

Insofar as it discriminates against married women by denying them equal protection against rape and; sexual harassment, Exception 2 breaches Article 14’s right to equality.

The Exception divides women into two groups based on their marital status and protects males from committing crimes against their spouses. As a result, the Exception allows married women to be victimized only because of their marital status; whereas unmarried women are protected from the same actions.

The distinction made between married and unmarried women in Exception 2 also violates Article 14 since the categorization formed has no logical relationship to the statute’s underlying objective.


Article 21 of the Indian Constitution is also violated by Exception 2. It says that; no one shall be deprived of his life or personal liberty unless in accordance with the legal procedure.

In several decisions, the Supreme Court has construed this Article to go beyond the merely literal protection of life and liberty. Instead, it has ruled that; the rights entrenched in Article 21 include, among other things, the rights to health, privacy, dignity, secure living circumstances, and; a healthy environment.

In recent years, courts have come to recognize that these larger rights to life and personal liberty include a right to refrain from sexual intercourse and to be free of unwanted sexual behavior.

The Supreme Court ruled in The State of Karnataka v. Krishnappa that sexual assault is an unlawful invasion of a woman’s right to privacy and sanctity, in addition to being a degrading act. Non-consensual sexual intercourse is considered physical and sexual assault, according to the same ruling.

The Supreme Court later associated the freedom to make sexual activity choices with the rights to personal liberty, privacy, dignity, and physical integrity under Article 21 of the Constitution in Suchita Srivastava v. Chandigarh Administration.


In recent years, the Supreme Court has expressly acknowledged the freedom to choose intimate connections in Article 21.

The Supreme Court recognized the right to privacy as a fundamental right of all citizens in Justice K.S. Puttuswamy (Retd.) v. Union of India, and held that; decisional privacy is reflected by the ability to make intimate decisions primarily concerning one’s sexual or procreative nature, as well as decisions regarding intimate relations.

Forced sexual cohabitation is an affront to that basic right. The preceding judgments make no distinction between the rights of married and unmarried women, and; there is no contrary ruling saying that marital affiliation abridges an individual’s right to privacy. The SC declared the ability to refrain from sexual activity a fundamental right under Article 21 for all women, regardless of their marital status.

Exception 2 also infringes on Article 21’s right to a healthy and decent life. As previously stated, the right to life envisioned in Article 21 is more than just a right to exist.

For example, there is no doubt that every Indian citizen has the right to healthcare and; that the government is responsible for the health of its citizens.


In this spirit, courts have consistently concluded that the right to life includes the right to live with dignity. Exception 2, has a negative impact on women’s physical and mental health, as well as their capacity to live with dignity. Because it prevents husbands from participating in acts of forced sexual contact with their wives.

Articles 14 and 21 of the Constitution are plainly violated by Exception 2 to Section 375 of the IPC. It is past time for Indian law to recognize the cruel character of this clause and strike it down.


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