{"id":3501,"date":"2026-06-06T12:27:00","date_gmt":"2026-06-06T06:57:00","guid":{"rendered":"https:\/\/quickdivorce.in\/blog\/?p=3501"},"modified":"2026-06-06T12:27:04","modified_gmt":"2026-06-06T06:57:04","slug":"court-judgements-on-marital-rape","status":"publish","type":"post","link":"https:\/\/quickdivorce.in\/blog\/court-judgements-on-marital-rape\/","title":{"rendered":"High Court and Supreme Court Judgements on Marital Rape in India"},"content":{"rendered":"

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Marital rape remains one of the most contested and unresolved questions in Indian criminal and constitutional law. This article traces every significant High Court and Supreme Court judgement on the subject \u2014 examining what courts have held, what remains undecided, and what legal protections women can pursue today.<\/p>\n\n\n\n

01 The Legal Position: Overview<\/h2>\n\n\n\n

Under Indian law, sexual intercourse by a man with his own wife is expressly excluded from the definition of rape under Section 375 of the Indian Penal Code (IPC) \u2014 now re-enacted as Section 63 of the Bharatiya Nyaya Sanhita 2023 (BNS). This is known as the marital rape exception.<\/p>\n\n\n\n

This exception traces its origin to the 18th century doctrine attributed to Sir Matthew Hale, Chief Justice of England, who wrote that a husband cannot be guilty of rape upon his wife because by their mutual matrimonial consent and contract, the wife gives irrevocable consent. This doctrine \u2014 widely rejected internationally \u2014 continues to have formal legal existence in India.<\/p>\n\n\n\n

Current Legal Position<\/strong>Forced sexual intercourse by a husband upon his wife who is above 18 years of age is not an offence of rape under the BNS 2023 or the IPC 1860. However, it may constitute cruelty under Section 498A IPC, an act of domestic violence under the Protection of Women from Domestic Violence Act 2005, and may constitute a ground for divorce on grounds of cruelty.<\/p>\n\n\n\n

02 Exception 2 to Section 375 IPC \u2014 The Marital Rape Exception<\/h2>\n\n\n\n

Section 375 of the IPC defined rape and contained Exception 2 which stated: “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 age was subsequently raised to eighteen years by the Supreme Court in 2017.<\/p>\n\n\n\n

The Bharatiya Nyaya Sanhita 2023, which replaced the IPC, retains the marital rape exception. Section 63 BNS contains the same exception \u2014 a husband cannot be prosecuted for rape upon his wife who is above eighteen years of age.<\/p>\n\n\n\n

Constitutional Challenge<\/strong>The marital rape exception has been challenged as violating Articles 14 (equality), 19 (freedom), and 21 (right to life and personal liberty including bodily autonomy) of the Constitution of India. Courts have been divided on whether the exception is constitutionally valid.<\/p>\n\n\n\n

03 Supreme Court: Independent Thought v. Union of India (2017)<\/h2>\n\n\n\n

Supreme Court of India<\/p>\n\n\n\n

Independent Thought v. Union of India & Anr.<\/p>\n\n\n\n

Writ Petition (Civil) No. 382 of 2013 \u2014 Decided: 11 October 2017<\/p>\n\n\n\n

A two-judge bench of the Supreme Court addressed whether Exception 2 to Section 375 IPC was constitutionally valid insofar as it permitted a husband to have sexual intercourse with a wife between the ages of fifteen and eighteen years \u2014 i.e., a child wife \u2014 without it constituting rape.<\/p>\n\n\n\n

The Court held that Exception 2 to Section 375 IPC was partially unconstitutional and read it down to exclude child wives. The Court held that a man who has sexual intercourse with his wife below eighteen years of age commits rape \u2014 regardless of whether they are married.<\/p>\n\n\n\n

However, the Court expressly did not address the position of adult wives \u2014 wives above eighteen years of age \u2014 and declined to strike down the marital rape exception in its entirety. The question of adult marital rape was left open.<\/p>\n\n\n\n

Landmark \u2014 Child Marriage Addressed Adult Marital Rape \u2014 Not Decided<\/p>\n\n\n\n

This judgement is significant because it established that marital status cannot override a child’s right to bodily integrity. The Court reasoned from the POCSO Act 2012 and the Convention on the Rights of the Child \u2014 holding that a child wife has the same right to protection as any other child.<\/p>\n\n\n\n

04 Delhi High Court Split Verdict (2022)<\/h2>\n\n\n\n

Delhi High Court \u2014 Division Bench<\/p>\n\n\n\n

RIT Foundation & Ors. v. Union of India & Ors.<\/p>\n\n\n\n

W.P.(C) No. 284\/2015 \u2014 Decided: 11 May 2022<\/p>\n\n\n\n

A division bench of the Delhi High Court \u2014 comprising Justice Rajiv Shakdher and Justice C. Hari Shankar \u2014 delivered a split verdict on a challenge to the marital rape exception. The two judges disagreed fundamentally on the constitutional validity of Exception 2 to Section 375 IPC.<\/p>\n\n\n\n

Justice Rajiv Shakdher<\/strong> \u2014 Struck down the marital rape exception as unconstitutional. His Lordship held that:<\/p>\n\n\n\n

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  • The exception violates Article 14 (right to equality) because it creates an arbitrary and irrational classification between married and unmarried women<\/li>\n\n\n\n
  • The exception violates Article 21 (right to life and personal liberty) because it negates a married woman’s right to bodily autonomy, sexual autonomy and dignity<\/li>\n\n\n\n
  • Marriage does not result in a woman’s perpetual consent to sexual intercourse<\/li>\n\n\n\n
  • The exception is manifestly arbitrary and must be struck down<\/li>\n<\/ul>\n\n\n\n

    Justice C. Hari Shankar<\/strong> \u2014 Upheld the marital rape exception as constitutionally valid. His Lordship held that:<\/p>\n\n\n\n

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    • Marriage is a unique and legally recognised institution that creates a different legal relationship between the parties<\/li>\n\n\n\n
    • The legislature \u2014 not the courts \u2014 is the appropriate forum to decide whether to criminalise marital rape<\/li>\n\n\n\n
    • The exception is a matter of legislative policy and cannot be struck down simply because it is contrary to one view of morality<\/li>\n\n\n\n
    • Existing remedies \u2014 Section 498A, the Domestic Violence Act \u2014 are adequate for marital sexual violence<\/li>\n<\/ul>\n\n\n\n

      Split verdict \u2014 Referred to Supreme Court<\/p>\n\n\n\n

      “A woman does not lose her right to bodily autonomy upon marriage. The law cannot proceed on the basis that a husband has an irrevocable licence to his wife’s body.”
      \u2014 Justice Rajiv Shakdher, Delhi High Court, 2022<\/p>\n\n\n\n

      Because the two judges disagreed, the matter was referred to the Supreme Court. No order striking down or upholding the exception was operative following the split verdict.<\/p>\n\n\n\n

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