The Delhi Excessive Court docket, which is listening to a batch of petitions in search of to criminalise marital rape, will pronounce its judgment on Wednesday, Could 11. The petitions are difficult the exception to the rape legislation beneath the Indian Penal Code (IPC).

Exception 2 of IPC Part 375 (rape) doesn’t think about forceful sexual activity by a person together with his spouse, who just isn’t beneath 15 years of age, as rape. In easy phrases, Exception 2 of Part 375 decriminalises marital rape or mandates that compelled sexual activity by a person together with his spouse in a wedding just isn’t rape.

A bench of Justices Rajiv Shakdher and C Hari Shankar will pronounce the decision within the 4 pleas in search of to criminalise compelled intercourse in a wedding, or marital rape.


The 4 petitions had been filed by the RIT basis in 2015, the All India Demoractic Girls’s Affiliation (AIDWA) in 2017, Khushboo Saifi, a marital rape survivor, in 2017, and one by a person accused of rape by his spouse.

Not less than three petitions by males’s rights organisations have additionally been filed earlier than the Delhi Excessive Court docket towards the criminalisation of marital rape on varied grounds, together with allegations of false instances, potential for misuse, and injury to conjugal relationship and household.

ALSO READ | Marriage not license to unleash brutal beast on spouse: Karnataka HC on rape case towards husband

One intervention plea additionally raised arguments for a gender-neutral definition of rape to make sure that males should not “unfairly focused”.

Listening to within the RIT basis’s case started in 2015, with the Delhi Excessive Court docket issuing a discover to the Centre and Delhi authorities. In 2016, the Centre filed an affidavit taking the stand that marital rape can’t be criminalised as it will have a adverse affect on Indian society. The lawyer for the RIT basis, Colin Gonsalves, had raised the violation of the proper to dignity. The case remained adjourned for over three years and the listening to lastly resumed in December 2021.


The petitioners within the case have sought to strike down the exception to the rape legislation. The petitioners have argued that the availability, along with violation of the proper to dignity, additionally immediately violates a lady’s proper to privateness, selection and bodily autonomy as recognised by the Supreme Court docket in the proper to privateness judgment.

ALSO READ | Why courts should keep out of the marital rape debate | OPINION

Apart from, it creates an “irrational classification” since a married girl is denied the fundamental proper to say ‘no’, a proper that’s obtainable to an single or separated girl.

It was additionally argued that the exception stems from patriarchal and Victorian understanding of the legislation of coverture, which says {that a} girl turns into the property of her husband after marriage, and that there’s “implied consent” that comes with marriage.


In 2017, the Centre filed an affidavit opposing the pleas submitted by petitioners, stating that marital rape can’t be made a legal offence because it might change into an instance which will “destabilise the establishment of marriage” and change into a simple software for harassing husbands.

ALSO READ | Rape is rape, says Karnataka HC because it permits costs towards husband on girl’s grievance

In January this 12 months, written submissions filed by the Centre within the Delhi HC acknowledged that criminalisation “might open the floodgates of litigation” and false allegations. It had additionally argued that a number of legal guidelines for the safety of ladies exist already, and that there was no have to criminalise marital rape since a lady can search recourse to the Home Violence Act or the marital cruelty provision of the IPC.

The affidavit additionally acknowledged that the Indian legislation “can’t blindly observe the West” in criminalising marital rape since it will have a “main social affect”.

Nonetheless, on February 1, the Centre advised the excessive courtroom that it was “re-looking” at its earlier stand on petitions in search of criminalisation of marital rape as that was introduced on report in an affidavit filed a number of years in the past. The federal government additionally acknowledged that it had begun consultations with all states and varied stakeholders since a stand can’t be taken on the problem with out session.

ALSO READ | Marital rape: Authorized points and debate | All it’s essential know


Justices Rajiv Shakdher and C Harishankar, whereas listening to the pleas, raised a number of questions and issues. The courtroom questioned whether or not it has the facility to strike down the availability which might in essence “create a brand new offence” since there isn’t a punishment beneath the present statute for rape by a husband.

The courtroom additionally questioned whether or not it may well outline a brand new offence and prescribe punishment, an influence solely of the legislature.

The bench had additionally raised issues about ladies’s rights, questioning whether or not it was possible to disclaim equality and proper of option to a lady “merely on account of her marital standing”.

The bench had additionally commented that there can’t be any “implied consent” because it appears to point “proper to have sexual relations with accomplice” which takes away a spouse’s proper to say ‘no’.

Whereas reserving its verdict in February, the Delhi Excessive Court docket additionally instructed that the Centre ought to “chunk the bullet” and take a stand on the problem as it will not be doable for the courtroom to “wait indefinitely”.


In March this 12 months, the Karnataka Excessive Court docket, whereas listening to a petition filed by a person in search of to quash costs of rape by his spouse, had stated that marriage is not any license to “unleash a brutal beast”. The landmark order allowed the framing of rape costs towards a person accused of forcing his spouse to be a “intercourse slave”.

ALSO READ | Marital rape exposes our society’s inherent misogyny | VIEW

“The establishment of marriage doesn’t confer, can’t confer and in my thought-about view, shouldn’t be construed to confer any particular male privilege or a license for unleashing a brutal beast. Whether it is punishable to a person, it must be punishable to a person, albeit the person being a husband,” the Excessive Court docket order stated.

“A brutal act of sexual assault on the spouse, towards her consent, albeit by the husband, can’t however be termed to be a rape. Such sexual assault by a husband on his spouse may have grave penalties on the psychological well being of the spouse. It has each a psychological and physiological affect on her. Such acts of husbands scar the soul of the wives. It’s, subsequently, crucial for the lawmakers to now “hear the voices of silence.”

The “age-old thought and custom that husbands are the rulers of their wives, their physique, thoughts and soul must be effaced” and that “archaic, regressive and preconceived notion” that such instances are mushrooming within the nation, the courtroom stated.

Nonetheless, the courtroom stated that whether or not marital rape must be acknowledged as an offence or not was for the legislature to contemplate.

The Supreme Court docket, which on Tuesday heard the person’s plea difficult the Karnataka Excessive Court docket, declined to remain the courtroom judgment which had refused to quash the case of marital rape filed towards him primarily based on a grievance by his spouse.

ALSO READ | Is it truthful to disclaim married girl proper to name rape by husband a rape, asks amicus in HC

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