In Hrishikesh Sahoo v State of Karnataka and Others, currently before a three-judge bench of the Supreme Court, the stakes are high for Indian women. The petitioners challenge the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code—and by implication, Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023, which replaces it. These provisions grant the Marital Rape Exception (MRE) to Indian husbands, stating that sexual intercourse or acts by a man with his wife, provided she is not under 18 years of age, do not constitute rape.
While marriage as an institution implies mutual consent for sex, questions arise: Is this consent consistent with the absence of consent to sexual abuse? Does any law prevent a woman from withdrawing her implied consent after marriage?
The Karnataka High Court created an exception to the MRE, offering relief to women in abusive marriages where sexual abuse is predominant. In 2022, Justice M. Nagaprasanna, in a single-judge bench ruling, questioned whether a wife gives implied consent to brutal sex. He held that if the answer is no, the accused cannot benefit from the MRE.
This case stems from a 2017 complaint by a woman against her husband, Hrishikesh Sahoo, alleging multiple offences under the Indian Penal Code, including rape, cruelty, and threats. Sahoo was also accused of abusing their daughter and charged with sexual assault under the Protection of Children from Sexual Offences Act, 2012 (POCSO).
Laws to safeguard women
Following the 2012 Nirbhaya incident in Delhi, the Justice J.S. Verma Committee, appointed by the then UPA government to recommend legal reforms addressing violence against women, advocated for deleting the MRE. Justice Nagaprasanna relied on this recommendation to carve out an exception to the MRE.
The Karnataka High Court deemed the MRE regressive, citing its violation of the right to equality by treating wives as subordinate to husbands. It ruled that no legal exception can be so absolute as to license crimes against society. Rather than striking it down entirely, the High Court narrowed the provision, deeming it inapplicable to brutal sexual offences committed by husbands against their wives.
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However, in petitions seeking to criminalise marital rape in India—now linked with the appeal against the Karnataka High Court verdict—the Union government has filed a preliminary counter-affidavit in the Supreme Court. It argues that existing alternative legal remedies protect married women against sexual violence and that applying the offense of “rape” within marriage may be “excessively harsh” and disproportionate.
A three-judge bench of the Supreme Court, comprising Chief Justice D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra, is currently hearing this case.
Two-sided verdict
The bench is also considering an appeal against the Delhi High Court’s 2022 split verdict. In that case, Justice Rajiv Shakdher deemed the MRE unconstitutional, citing its discriminatory nature and violation of a woman’s bodily autonomy and expression. Conversely, Justice C. Hari Shankar held that within marriage, sexual relations—consensual or not—are a legitimate expectation, thus making the MRE legal. The Union government’s latest Supreme Court affidavit appears to draw from Justice Hari Shankar’s judgment.
The Union government contends that determining the constitutionality of Exception 2 to Section 375 requires a holistic approach, following due consultation with all States. Some States, in their responses to the Centre, have opted for ambiguity.
“The issue is more social than legal, and criminalisation of marital rape falls within the ambit of legislative policy,” the Union government has informed the Supreme Court. However, in previous cases, the Supreme Court has refused to dismiss cases solely because they touch on social and political factors, deeming such matters not outside judicially manageable standards. While the Union government concedes that marriage does not negate a woman’s consent, it argues that violations of consent within marriage have different consequences than those outside marriage.
The government’s affidavit cites Sections 354, 354A, 354B, 498A of the Indian Penal Code, and the Protection of Women from Domestic Violence Act, 2005, as providing various penal consequences for such violations. Section 354 addresses the use of criminal force to outrage a woman’s modesty; Section 354A covers unwelcome physical contact and explicit sexual overtures; and Section 354B deals with assault or criminal force against a woman with intent to disrobe.
The government also references Section 3 of the Protection of Women from Domestic Violence Act, 2005, which offers remedies to aggrieved married women for all forms of spousal abuse, including physical, economic, sexual, verbal, and emotional.
Notably, none of these provisions exempt marital rape. Consequently, advocates for repealing the MRE question its retention, given that these alternative remedies imply no such exception.
The Union government’s mention of Section 498A as an alternative legal remedy for a married woman alleging rape by her husband is significant. This provision addresses the offence of cruelty by a husband against his wife, implying that in such situations, the wife must be deemed to have withdrawn her consent.
Report by National Commission for Women
The Union government cites a 2022 National Commission for Women report advocating retention of the Marital Rape Exception (MRE) because: i) married women cannot be treated on par with unmarried women, ii) alternative remedies exist, and iii) punitive measures may lead to destitution for the wife and dependent children. A critique of this report, however, suggests it essentially tells married women alleging spousal rape to tolerate it for their own benefit and that of their children.
The Union government’s affidavit states that while a man has no fundamental right to violate his wife’s consent, classifying such acts as “rape” is “excessively harsh” and “disproportionate”. It argues the court cannot strike down the MRE based on “perceived” consequences (such as nullifying the wife’s consent or encouraging forced marital sex).
Petitioners contend all forms of sexual violence or consent breaches should be treated identically. The Centre describes this approach as unidimensional, arguing that two incomparable situations (sexual relations within and outside marriage) cannot be treated equally.
In its preliminary affidavit, the Union government justifies Section 376B of the IPC, addressing sexual intercourse by a husband with his separated wife. This provision mandates imprisonment of two to seven years, plus a fine, for non-consensual sex with a separated wife.
Classifying forms of sexual abuse
While this law emphasises consent in marital sex during separation, the Union government argues it demonstrates Parliament’s recognition and classification of various forms of sexual abuse or violence. “The Legislature is free to classify various forms of sexual abuse in different situations distinctly,” it contends.
In the Karnataka case, the wife complained of being a “sex slave” from the marriage’s onset, forced into unnatural oral and anal sex imitating pornographic films. The High Court interpreted the MRE as inapplicable to brutality, distinguishing it from non-brutal sex, which alone merits legal protection.
Curiously, the Union government’s affidavit is silent on the High Court’s distinction between brutal and non-brutal marital sex. Instead, it frames the issue of addressing consent breaches within marriage as a matter of delicate legislative balance, considering competing positions.
As the hearing progresses, the Centre is likely to argue that legal reform, even if relevant now, falls within the legislature’s domain rather than the judiciary’s. However, the judiciary has previously rejected this contention in cases involving fundamental rights.
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If the Union government is truly committed to protecting women’s liberty, dignity, and rights, as claimed in its affidavit, it should act decisively to end all forms of violence and offences against women, including those perpetrated by husbands.
Contrary to this, the Union government contends that the impugned provisions are not manifestly arbitrary and should not be struck down. Its affidavit argues that breaches of marital consent carry different penal consequences, which sufficiently deter such acts. It reminds the Court that the right to privacy, as per its landmark 2017 judgment, is not absolute but subject to reasonable state restrictions to protect legitimate public interests.
The government implies that protecting the institution of marriage is itself a public interest, necessitating restrictions on married women’s privacy rights. It argues that marriage, creating reciprocal conjugal rights, is incomparable to “consent” in non-marital contexts.
The government adds that the ongoing expectation of reasonable sexual access between spouses distinguishes marital non-consensual sex from non-marital incidents. The Centre’s attempt to balance the accused husband’s position against a woman’s right to consent reveals its lip service to “nari shakti” (women’s power).
Curiously, the Centre suggests that the minimum punishment for rape under Section 376 IPC—rigorous imprisonment of 10 years to life, plus a fine—is drastic. Its affidavit claims applying this provision to marital rape would breach life and liberty without just, fair, and reasonable procedure.
It remains to be seen whether the Supreme Court will agree with the Centre’s view that it should avoid such delicate and sensitive issues, deferring to Parliament as the directly elected body presumed to better understand people’s needs.
V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues.
