MARITAL RAPE IN INDIA: A CRITICAL ANALYSIS OF THE LEGAL VACUUM AND THE CASE FOR STATUTORY RECOGNITION

Marital rape, the act of non-consensual sexual intercourse perpetrated by a husband upon his
wife, remains one of the most glaring lacunae in Indian criminal jurisprudence. Despite
sweeping reforms in sexual offence law following the 2012 Nirbhaya case, Exception 2 to
Section 375 of the Indian Penal Code 1860 continues to immunise husbands from
prosecution for raping their wives. The persistence of this exemption is a relic of the Hale
doctrine, a colonial-era common law fiction grounded in the now-discredited premise of
implied perpetual matrimonial consent. This paper critically examines the historical origins
of the marital rape exception, maps its constitutional infirmities against Articles 14, 19, and
21 of the Constitution of India, and engages with the principal arguments, cultural, social,
and institutional, marshalled by its defenders. It further surveys comparative jurisdictions
where the exemption has been abolished, evaluates the inadequacy of existing statutory
protections such as the Protection of Women from Domestic Violence Act 2005, and argues
that independent criminalisation through a specific provision is both constitutionally
mandated and socially imperative. The paper concludes with a framework for legislative
reform.
KEYWORDS: Marital rape; Exception 2 to Section 375 IPC; Hale doctrine; Article 21;
conjugal immunity; criminalisation; Bharatiya Nyaya Sanhita 2023.