Criminalisation of marital rape in view of transformative constitutionalism: An analysis

Marital rape is an unrecognised offence in the Indian criminal justice system. Exception 2 to Section 375 of the IPC excludes marital rape from the definition of rape otherwise envisaged within this Section. The roots of such non-criminalisation can be traced back to our colonisation by the British. Section 375 was drafted in consonance with Victorian patriarchal norms, which were then prevalent in British India.

The marital rape has been still an unrecognised offence in criminal jurisprudence of India. Moreover, as need criminalising marital has become an important in lines of transformative constitutionalism and to protect the marital rights of women)


The debate surrounding the constitutionality of and cry for criminalising marital rape in India is growing and intensifying the existing tussle between the Indian judiciary and Indian legislature. Nearly 52 countries have criminalised marital rape. India, however, does not feature on this list. Feminist groups, stakeholders and citizens alike are all rising against the very existence of Exception 2 to Section 375 of the Indian Penal Code (hereinafter referred to as the ‘IPC’).

Exception 2 to Section 375 of the IPC reads as follows:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

The Supreme Court of India as well other High Courts are already overflowing with multiple petitions challenging the constitutionality of exception marital rape. Unfortunately, however, in light of no conclusive verdict being delivered on this, Exception 2 to Section 375 continues to decriminalise marital rape in the post-independence era under the immunity given to it by Article 372 of the Indian Constitution.

The ideas and notions in light of non- criminalising marital rape extensively propagate subjugation of women to men. Despite the presence of such inconsistencies and a dire need to amend the law on marital rape, it stands as it is due to patriarchal norms.

It is within this context that the instant post seeks to satisfy a two-fold objective: first, to analyse the social and cultural notions justifying the criminalisation of marital rape and second, to understand whether these notions would hold good in light of the recently recognised principle of transformative constitutionalism.

Tracing the roots of and problems with marital rape laws in India

Marital rape is an unrecognised offence in the Indian criminal justice system. Exception 2 to Section 375 of the IPC excludes marital rape from the definition of rape otherwise envisaged within this Section. The roots of such non-criminalisation can be traced back to our colonisation by the British. Section 375 was drafted in consonance with Victorian patriarchal norms, which were then prevalent in British India. The Victorian Patriarchies in 1860 (During the enactment of Indian Penal Code) did not hold men and women in the same stead, thus propagating the belief amongst lawmakers that a woman, by virtue of her marriage, forgoes the right to refuse to have sexual intercourse with her husband forever. The husband, as a corollary, acquires an unconditional and unqualified licence to force his wife to have sex with him at any time. This is a common feature of the doctrine of coverture, whereby the identity of a woman is subsumed into the man’s identity. Their existence, thus, becomes that of a ‘chattel’ rather than a human being.

Such interpretation seems to have no meritorious consequence because it also undermines the idea of agency of women. By not criminalising marital rape even today, the law as it stands portrays the image that a woman’s agency, expressed in the form of consent, is of no material bearing to it. The fact that a married woman may most likely be a major woman having the right to vote and enter into contracts but is still being denied the right to make decisions about her own body is antithetical to the constitutional tenets of equality and freedom. It also squarely violates Article 21’s recently recognised right to privacy.

A gross violation of Article 14, 19 and 21 is found when Exception 2 is evaluated in light of the recent verdict in Independent Thought v. Union of India. The law as it stands today criminalises marital rape of children but not of majors. There appears to be no rational nexus or intelligible differentia to justify such classification. While a minor, who in law has no contractual or voting rights is given the prerogative to file a complaint against her rapist; a major woman in the same position is not, just because she is elder. It is an undisputed fact that rape affects the mental balance, dignity, well-being and sanctity of any woman, regardless of her age. Therefore, such distinction seems futile. This line of thought can further be extended to argue that every woman subjected to marital rape undergoes a similar violation of her dignity solely by virtue of her gender, which is discriminatory and violative of Article 15.


Transformative constitutionalism is a recent doctrine introduced by the apex court in Navtej Singh Johar v. Union of India. Relying on this doctrine to decriminalise consensual gay sex, the Court labelled it as the “raison d’etre” of the Constitution. This doctrine is premised on the idea that the Constitution is a living document whose main function is to keep constitutional morality intact. Constitutional morality, an ever-growing, all-inclusive notion is to supersede social or popular morality of the general public at all points of time. Thus, the role of Courts is to interpret laws in a manner consistent with such progression and not adverse to it, to ensure overall development and foster a sense of inclusiveness within society. Although the contours of this doctrine remain largely undefined, it is clear from Hon’ble Justice Chandrachud’s opinion in Navtej Singh Johar that transformative constitutionalism, owing to its evolving and abstract nature, would be most appropriately realised when defined on a case-to-case basis. Thus, the doctrine prescribes a mode for reasoning rather than a straitjacket test for adjudication of disputes.

Non-criminalisation of marital rape attacks the very soul of the transformative constitutionalism doctrine. Exception 2 classifies rape, which is supposed to be an entire offence within itself, into the following three categories: rape committed upon an unmarried woman, rape committed upon a married woman under judicial separation and rape committed upon a married woman. According to Section 375 of IPC, non-consensual sexual intercourse amounts to rape, but a similar act occurring within the ‘sanctity’ of marriage is not. On the other hand, non-consensual sexual intercourse amounts to rape under Section 376B if a woman is pursuing judicial separation but remains married. Thus, it is observed that an unreasonable distinction is created, premised entirely on the institution of marriage and the notion of women as ‘chattel.’

This unreasonable distinction suspends women’s marital rights across India, and amplifies potential risks to their bodily autonomy, privacy and dignity. Transformative constitutionalism, which would want to preserve the dignity of an individual (by virtue of the superior tenets of constitutional morality), would strike down the marital rape law, deeming it to be antithetical to a woman’s sense of existence.

When such seemingly persuasive arguments on the legal front are countered, the one social defence in favour of marital rape is that “it preserves the institution of family.” The Supreme Court in Independent Thought v. Union of India categorically held that marriage is not an “institution” at all. It is a personal phenomenon which cannot be destroyed by anything except a statute that explicitly makes marriage punishable and illegal. Thus, the “destruction” of marriage cannot be attributed to the criminalisation of marital rape. It is time that marital rape is looked at as what it really is, a rape, instead of circumstantially qualifying it simply because it happens in wedlock. A rape, after all, is an offence in rem.

Therefore, the doctrine of transformative constitutionalism must be imported to declare the aforesaid exception as being unconstitutional and contrary to the very notion of constitutional morality. In view of such developments, the criminalisation of marital rape does not seem to be a challenging task even in lieu of the purported social and cultural realm of marriage. Notions have begun changing and people are gradually becoming aware of the nuances of such a provision. Transformative constitutionalism can, on the other hand, foster acceptance and inclusivity of individuals in society.


While the importance of criminalising marital rape is generally adjudged on the basis of its constitutionality, another mechanism would also be to look at the potential benefits of such criminalisation to society at large. Since the end goal of transformative constitutionalism is to build an ideal and just society, it would also not be in favour of letting any segment of society suffer, and possibly turn to a practical examination of the benefits of such criminalisation/

Criminalising marital rape and adding a stringent punishment for violation will deter the husband and probably set a good precedent in the Indian society. The traditionally existent patriarchal notions will begin to fade away and pave the way for equal and dignified treatment of women. The first step, however, must be strict deterrence.

There are two objectives of a criminal punishment: first, to prevent wrongdoers from repeating crimes, and second, to use their conviction as an example governing future conduct. Salmond considered deterrence to be the most effective and important means of morally implementing the ideals of any criminal justice system. The 42nd Law Commission Report suggested that marital rape be put into a separate section, not be called ‘marital rape’ and also have a different punishment. This goes a long way into ensuring that the gravity of the punishment is understood by the offenders before committing it.

Lastly, transformative constitutionalism would most likely seek to honour India’s international obligations, most of which reinforce basic human rights and foster the building of an inclusive community, by incorporating appropriate statutory punishments in their domestic legal setup. This is more so in the situation where we are a party to charters and conventions highlighting these obligations. In the orb of international law, rape is deeply condemned.

Hence, criminalising marital rape, which will lead to the creation of a good model for criminal legal jurisprudence, will only further the superior ethos envisaged within the transformative constitutionalism doctrine.

Pratik Irpatgire ( B.A., LL.B. Hons., 5th year), Maharashtra National Law University Mumbai)