Legal Status of Marital Rape in India: A Constitutional Perspective – Ongoing Delhi High Court case, Section 375 IPC, Article 14 & 21.

In a country governed by the rule of law and guided by constitutional values, it is deeply unsettling that marital rape remains legal in India. Section 375 of the Indian Penal Code, which defines the offence of rape, continues to carry an exception that shields a husband from prosecution for non-consensual sex with his wife. Simply put, forced sex within marriage is not considered rape under Indian law.

This exception, dating back to colonial times, is built on the archaic assumption that a wife’s consent is permanent and irrevocable once she enters into matrimony. But such a notion is no longer compatible with the evolving spirit of the Constitution of India, particularly Articles 14 and 21, which guarantee equality before the law and the right to live with dignity.

The Delhi High Court recently dealt with this issue in a landmark case challenging the constitutional validity of the marital rape exception. The two-judge bench delivered a split verdict—Justice Rajiv Shakdher declaring the exception unconstitutional, while Justice C. Hari Shankar upheld it. With no final decision, the matter has now reached the Supreme Court, where the issue is poised to receive nationwide attention and judicial clarity.

At the core of this debate lies a simple yet powerful question: Does marriage erase a woman’s right to bodily autonomy? Can a legal institution like marriage override a woman’s right to say no?

Time and again, the Supreme Court has emphasized the importance of consent, privacy, and dignity. In the Puttaswamy case, the Court recognised privacy as a fundamental right. In Joseph Shine, it struck down the adultery law, calling it discriminatory and patriarchal. In these judgments, the judiciary made it clear: constitutional protections do not stop at the bedroom door.

And yet, Section 375 continues to deny married women the same legal protection afforded to unmarried women. It creates a class of women excluded from the criminal justice system, based solely on marital status. This, in itself, is a violation of Article 14class of women excluded from the criminal justice system,—the guarantee of equality before the law.

Those who argue against criminalising marital rape often raise concerns about misuse, family disruption, and the challenge of proving such offences. These concerns, while not irrelevant, cannot override fundamental rights. Every law—be it on dowry, domestic violence, or workplace harassment—faces risks of misuse. But the solution lies in judicial safeguards, not legal immunity for abusers.

It is also misleading to argue that civil remedies under the Domestic Violence Act are enough. Civil law can provide protection orders or maintenance, but it cannot recognize rape for what it is—a serious, criminal violation of bodily integrity.

Across the world, over 100 countries have removed the marital rape exception. India remains one of the few democracies where marriage continues to shield sexual violence. For a nation that aspires to gender equality and constitutional justice, this is a deeply uncomfortable truth.

The path ahead is clear. The Supreme Court must now step in, not only to interpret the Constitution but to uphold its promise. Laws that protect perpetrators at the cost of survivors cannot be allowed to stand. The judiciary has the opportunity—and the responsibility—to bring Indian criminal law in line with its constitutional values.

Because no marriage can justify violence, and no law should deny justice to those who seek it.

In a just society, silence in the law cannot mean silence for the victim. It is time to listen. And act.