No Means No: Marital Rape Exception in India

The Delhi High Court on 11 May 2022 handed down two separate verdicts on a batch of petitions challenging the marital rape exception under Section 375 of the Indian Penal Code (IPC). Justice Rajiv Shakdher, in his judgment, has held that the marital rape exception in favour of the husband is violative of the right to equality, right to life, right against discrimination, and the right
to freedom of speech and expression. However, Justice C Hari Shankar did not agree with Justice Shakdher. Justice Shankar has held that the marital rape exception is not violative of the Constitution and is based on an intelligible differentia.

Justice Shakdher’s verdict is sound. There can be no rational basis to differentiate between married and unmarried women. The IPC classifies the crime of rape on the basis of marital status of the women, namely unmarried, married, and married but separated. This classification does not have any relation with the object of the statute, that is, to prevent and punish the offence of rape. A woman does not lose her right to sexual autonomy upon her marriage. Rape is rape irrespective of the fact that it is perpetrated by the husband on his wife.