Delhi High Court and the Marital Rape Exception: A Legal Turning Point
- ByAdmin --
- 17 Jun 2025 --
- 0 Comments
The Delhi High Court has been at the center of one of the most significant constitutional debates in recent times — the challenge to Exception 2 of Section 375 of the Indian Penal Code (IPC), which essentially states that sexual intercourse by a man with his own wife is not rape, provided the wife is not under 18 years of age.
Petitioners, including rights organizations and individual activists, approached the court seeking to strike down this exception, arguing that it violates the fundamental rights of married women by denying them legal protection against non-consensual sex within marriage.
What the Law Says
- Section 375 IPC defines rape and its punishable circumstances.
- Exception 2 of this section excludes forced sexual intercourse by a husband with his wife (over 18) from the definition of rape.
- This exception has remained part of the law since colonial times and has often been criticized for being outdated and discriminatory.
Key Constitutional Issues Raised
The petitions before the Delhi High Court argued that the marital rape exception:
- Violates Article 14 of the Constitution (Right to Equality), as it treats married and unmarried women unequally.
- Violates Article 15, which prohibits discrimination on the grounds of sex.
- Violates Article 21, which guarantees the right to life and personal liberty, including bodily autonomy and dignity.
The central question: Can marriage be used as a defense for forced sexual relations without consent?
The Delhi High Court Verdict
In May 2022, a two-judge bench of the Delhi High Court delivered a split verdict on the matter.
Justice Rajiv Shakdher’s Opinion (in favor of striking down the exception):
- Held that the marital rape exception is unconstitutional.
- Argued that the law treats married women as less deserving of protection than unmarried women.
- Emphasized that consent must be central to all sexual relations, including those within marriage.
- Declared that marriage should not serve as a legal shield for non-consensual sex.
Justice C. Hari Shankar’s Opinion (in favor of retaining the exception):
- Held that the exception does not violate the Constitution.
- Argued that marriage implies a mutual understanding of sexual relations.
- Expressed concern that criminalizing marital rape could disrupt the institution of marriage and family structure.
- Stated that there are legal remedies available for abuse under other laws such as the Domestic Violence Act.
Due to the split verdict, the matter was referred to the Supreme Court of India, where a larger bench is now hearing the appeal.
Broader Implications
- The case has become a flashpoint in the national conversation on women’s rights, bodily autonomy, and gender justice.
- India is one of the few major democracies where marital rape is not recognized as a criminal offense.
- Rights activists argue that legal recognition of marital rape is essential for upholding the dignity and autonomy of married women.
- Critics of criminalization worry about misuse of the law and the potential impact on matrimonial relationships.
Government’s Stance
In previous hearings, the central government had taken a cautious approach, stating that any change in the law should come from Parliament, not the judiciary. It argued that criminalizing marital rape would require a nuanced understanding of Indian social realities and could affect the sanctity of marriage.
However, the courts have made it clear that constitutional rights cannot be overridden by social customs or outdated legal assumptions.
What Happens Next
- The matter is currently pending before a Constitution Bench of the Supreme Court.
- The final ruling will determine whether the marital rape exception can continue to exist under Indian law.
- If struck down, Parliament may need to amend laws such as the IPC and potentially align them with broader gender equality standards.
Conclusion
The Delhi High Court’s split decision has opened the door for a historic judgment on the issue of marital rape. As the Supreme Court examines the matter, the country stands at a legal crossroads—between preserving traditional marital norms and upholding the fundamental rights and dignity of every woman, married or not.
RELATED Blog
0 comments