Privacy cannot shield marital rape

By confusing privacy with secrecy, the law protects the institution over individuals, violates the promise of consent.

As the Supreme Court prepares to hear the pivotal case of Hrishikesh Sahoo vs State of Karnataka & Ors., and decide if the marital rape exception (MRE) to Section 375 of the IPC violates the fundamental rights of married women, India stands at a defining crossroads by retaining the MRE.

The Himachal Pradesh High Court recently held that ‘unnatural sex’ with a wife is punishable under Section 377 of the Indian Penal Code (IPC), rejecting the MRE in that context. In doing so, it diverged from a July 2024 judgement by the Uttarakhand High Court, which held that a husband could not be prosecuted under the same section. This judicial dissonance lays bare the central inconsistency: if MRE does not shield a husband under Section 377 of the IPC, why should it under Section 375? What constitutional or logical principle justifies such a dichotomy?

India’s criminal justice framework – overhauled in 2023 to move away from colonial roots – continues to enshrine the MRE, now ported unaltered from Section 375 of the IPC 1860 to Section 63 of the new Bharatiya Nyaya Sanhita, 2023, despite repeated recommendations by expert committees and growing public discourse.

At its core, the MRE creates an artificial and unconstitutional distinction between married and unmarried women, in direct violation of the right to equality before the law enshrined in Article 14 of the Constitution. This distinction is not just morally indefensible, it is constitutionally untenable, and at the heart of it lies a fundamental misinterpretation of the right to privacy.

The Union Government has repeatedly defended the MRE by invoking the sanctity of marriage and the need to protect the family. The argument goes that criminalising marital rape would “destabilise” the institution of marriage, and the state must not interfere in what happens between a husband and wife behind closed doors.

This view treats privacy as a protective wall around the marital home, shielding it from legal scrutiny. But this is a regressive, spatial understanding of privacy – one that prioritises the institution over the individuals within it. The Supreme Court’s landmark ruling in Justice K S Puttaswamy vs Union of India shattered this outdated notion. The Court held that “privacy gives each person the right to be left alone in an area that cannot be violated” and placed the individual at the core of the right to privacy, recognising it as a “decisional right” rather than merely an “institutional” or “spatial” one. This position was further clarified in Independent Thought vs Union of India, where the Court struck down the MRE for minor wives between 15 and 18 years of age. The judgement emphasised that marriage is a personal relationship, not a legal fortress immune from constitutional scrutiny. The analysis of the denial of a right to privacy should focus on the denial of self-expression, instead of reducing the question to where the violation took place.

Violation of equality, dignity

Proponents of the MRE argue that such laws could be misused, or that they interfere with the private dynamics of marriage. But all laws are subject to potential misuse, which is why courts and legal safeguards exist to distinguish genuine claims from false ones. To deny an entire class of victims legal protection on the mere possibility of misuse is not a valid argument; it is an abdication of responsibility.

India’s legal framework already recognises the need to intervene in domestic spaces in cases of cruelty, dowry harassment, and domestic violence. Yet, when it comes to sexual violence, the law draws an arbitrary line, effectively saying that a husband forcing himself on his wife is not a crime. This legal fiction creates a chilling consequence that a woman’s body is no longer her own once she is married. It signals that the marital bond, rather than the individual’s autonomy, is the unit worth protecting. This is not only inconsistent with constitutional guarantees of equality and dignity, but also out of step with international human rights standards and global practices wherein countries have criminalised marital rape.

By retaining the MRE, India has missed a crucial chance to correct a long-standing injustice. Yet, public discourse, constitutional reasoning, and judicial scrutiny can still pave the way forward. As the Supreme Court prepares to hear the challenge to this exception, there remains hope that the law will finally recognise what should be self-evident – that every woman, married or not, has the right to bodily autonomy and sexual consent. Until then, the constitutional promise of equality and dignity remains unfulfilled.

(The writer is a lawyer and a research fellow at Vidhi Centre for Legal Policy)