As the Indian Supreme Court prepares to hear the landmark case challenging India’s Marital Rape Exception, Kanaksha Kataria discusses how this colonial-era law violates a multitude of constitutional rights. Drawing on leading constitutional frameworks, she argues the legal immunity granted to husbands creates a sanctioned hierarchy of oppression that fundamentally undermines married women’s constitutional rights to equality, dignity, and bodily autonomy. 

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The Marital Rape Exception (MRE) in Indian criminal law stands as one of the most patriarchal yet contentious vestiges of colonial jurisprudence. MRE exemplifies the deep contradiction between conventional patriarchal norms and basic constitutional guarantees of equality, dignity and autonomy. As the Supreme Court prepares to address this issue in Hrikesh Sahoo v. State of Karnataka, the fundamental question emerges yet again: can the legal immunity granted to husbands for non-consensual sexual acts within marriage withstand constitutional scrutiny?

This analysis evaluates the constitutional invalidity of MRE via several lenses. First, drawing on Tarunabh Khaitan’s framework of discrimination law, it is argued that MRE fails the stringent standards of Articles 14 and 15 of the Indian Constitution. Second, it is argued that MRE transgresses beyond equality provisions and ruthlessly undermines married women’s rights to dignity, personal liberty, and freedom from exploitation under Articles 19, 21, and 23.

Neoteric jurisprudential developments make the MRE’s constitutional position progressively untenable. The Supreme Court’s interpretations in Navtej Singh Johar v. Union of India (decriminalising consensual same-sex relations) and Joseph Shine v. Union of India (decriminalising adultery) have signalled progressive shifts, bolstering the constitutional foundation for personal autonomy and sexual agency. Yet, the existence of MRE creates a paradoxical constitutional framework where married women possess fewer rights over their bodily autonomy than their unmarried counterparts. This legal matrix creates a sanctioned hierarchy of oppression by actively perpetuating a hierarchal regime of rights protections, effectively institutionalising gender-based discrimination.

The persistence of this legally sanctioned hierarchy is understood through Rochana Bajpai’s concept of the “normative deficit” in the Indian constitutional framework. While Bajpai originally developed this argument to analyse group-differentiated rights, its application to MRE reveals why orthodox and constitutionally infirm value systems continue to undermine fundamental protections.

Violations of Article 14: the Right to Equality and Non-discrimination

MRE violates this principle by creating an arbitrary distinction between married and unmarried women when it comes to sexual autonomy and protection from sexual violence. To analyse the unconstitutionality of the MRE under Article 14, one must apply the two well-established tests: (1) the reasonable classification test, and (2) the arbitrariness test.

1. The test of reasonable classification
Under this test, a law must satisfy two conditions:

• The classification must be based on an intelligible differential.
• There must be a rational nexus between the differentia and the object sought to be achieved by the law.

A. Intelligible differentia
Intelligible differentia denotes a criterion to test reasonable classification. It is a lucid and discernible ground that distinguishes one group of people or situations from another for legislative purposes. It is the parameter which justifies treating groups distinctly. MRE classifies women based on their marital status. It distinguishes between married and unmarried women. This classification is prima facie based on intelligible differentia. It recognises the status of marriage as a legal relationship distinct from other relationships. So, it makes a clear distinction between married women and unmarried women regarding sexual intercourse and consent.

B. Rational nexus
However, the differentia must not only be intelligible, but it must also bear a rational connection to the object of the law. The object of rape laws, as defined under Section 375 of the Indian Penal Code, is to protect a woman’s bodily integrity and sexual autonomy by criminalising non-consensual sexual intercourse. MRE undermines this objective by exempting husbands from prosecution for non-consensual sexual acts within marriage. This exemption does not serve the goal of protecting women from sexual violence. Instead, it creates a legal loophole where a woman’s consent is devalued simply because of her marital status i.e. her relationship with the very perpetrator of the crime.

The Supreme Court has repeatedly held that laws failing to achieve their stated objectives are unconstitutional. In State of West Bengal v. Anwar Ali Sarkar and EP Royappa v. State of Tamil Nadu, the Court emphasised that the classification must have a rational nexus to the purpose of the law. In this case, the object of protecting women from sexual violence is undermined by the distinction based on marital status, as MRE excludes married women from the same legal protections available to unmarried women. Thus, it violates the core tenets of equality enshrined under Article 14 of the Indian Constitution.

C. Strict scrutiny
MRE should be subject to the strict scrutiny standard because it involves a fundamental right – the right to bodily autonomy and sexual integrity under Article 21. When a law infringes upon fundamental rights, the courts are required to apply strict scrutiny, which requires that the law:

• Must have a compelling state interest, and
• Must be narrowly tailored to achieve that interest in the least restrictive way.

In this case, the purported compelling state interest is the preservation of the sanctity of marriage. However, this interest cannot justify the violation of a woman’s fundamental right to bodily autonomy. The preservation of marriage cannot be elevated above an individual’s fundamental right to consent or refuse sexual intercourse. In other words, the object of “preserving marriages” based on patriarchal notions cannot override constitutionally guaranteed fundamental rights. As the Supreme Court held in Shayara Bano v. Union of India, laws that operate on patriarchal assumptions about women’s roles in marriage are inherently discriminatory and violate constitutional principles of equality.

Further, the law is not narrowly tailored to achieve its objective. Even if protecting the institution of marriage is considered a legitimate interest, MRE is an overly broad measure. Instead of addressing the complexities of marital relationships through other legal mechanisms, MRE gives blanket immunity to husbands. Here stripping married women of their fundamental right to bodily integrity is overlooked and in turn, criminal impunity is extended. Under strict scrutiny, this law would clearly fail because it is neither justified by a compelling interest nor narrowly tailored to achieve that interest without infringing on fundamental rights.

2. The test of arbitrariness
As established in Maneka Gandhi v. Union of India and EP Royappa, arbitrariness is antithetical to equality under Article 14. A law is arbitrary when it acts irrationally, disproportionately, or without a proper guiding principle. MRE creates an arbitrary distinction between married and unmarried women by assuming that married women, by their marital status, have consented to all future sexual acts with their husbands.

This assumption of irrevocable consent is rooted in patriarchal norms that view marriage as a license for the husband’s unchecked control over the wife’s body. Such an outdated notion is arbitrary because it disregards the evolving understanding of marriage as a partnership between equals, where both parties retain their autonomy. By treating sexual consent within marriage differently than outside marriage, MRE operates irrationally, disproportionately impacting married women and denying them the equal protection of the law. This implies that legally such women are not victims of sexual abuse simply because the perpetrator is their husband.

As Justice Nariman explained in Shayara Bano, manifest arbitrariness includes laws that operate disproportionately and without adequate guiding principles. MRE allows married women to be subjected to sexual violence without legal recourse, which clearly meets the definition of manifest arbitrariness. It is excessive, irrational, and fails to recognise married women as autonomous individuals deserving of equal protection under the law.

Violations of Article 15: Prohibition of Discrimination
MRE also violates Article 15(1) of the Constitution, which prohibits discrimination on grounds of sex. Khaitan’s work provides a framework for understanding how the MRE discriminates against women by reinforcing harmful gender stereotypes and creating an unequal legal regime for married women.

1. Anti stereotyping principle
The anti-stereotyping principle, as highlighted in Anuj Garg and Navtej Singh Johar, prohibits laws that are based on gendered stereotypes. The MRE rests on the archaic notion that women, once married, implicitly consent to sexual relations with their husbands in semper. This perpetuates the stereotype of women as submissive sexual partners who are bound by the norms of marriage. It reinforces the damaging stereotype that marriage strips women of their individuality, compelling them to sacrifice even their most fundamental rights in the name of preserving peace.

By allowing husbands to act on these stereotypes with impunity, MRE effectively reduces the married woman’s sexual autonomy to that of her husband’s property, violating the anti-stereotyping principle under Article 15. The concept of marital consent as irrevocable and automatic has no place in a modern constitutional framework based on equality and autonomy.

2. Intersectionality and gender discrimination
Khaitan also emphasises the importance of considering intersectionality when analysing gender-based discrimination. In this context, MRE discriminates against women based not just on their gender but also on their marital status. Married women are subjected to a higher threshold of rights violations due to their gender and their relationship status resulting in multi-dimensional discrimination. The Court’s evolving jurisprudence on equality, especially in Joseph Shine, highlights how patriarchy and marriage norms have historically suppressed women’s autonomy, and how such suppression cannot be constitutionally justified under Article 15.

The broader constitutional implications: Articles 19, 21, and 23
The constitutional violations stemming from MRE extend beyond Articles 14 and 15. Article 19(1)(a) protects personal expression, which includes sexual autonomy. By legally depriving married women of their right to say “no,” MRE silences a critical aspect of self-expression. Additionally, Article 21’s guarantee of life and personal liberty has been liberally construed to include dignity and bodily integrity (per Maneka Gandhi, Puttaswamy etc). MRE, by stripping married women of autonomy over their bodies, violates this essential right to live with dignity. Further, Article 23’s prohibition against forced labour jurisprudentially extends to situations where coercion is social, economic, or legal. When women are legally compelled to engage in non-consensual sexual acts, the law becomes complicit in enabling a form of forced labour within the home, undermining constitutional protections against servitude.

The proportionality test: why MRE fails judicial scrutiny
India’s judicial system frequently applies the proportionality test to assess restrictions on fundamental rights, requiring that such measures serve a legitimate aim and are necessary and proportionate to achieving that aim. MRE, purportedly intended to preserve the sanctity of marriage, cannot be justified by this rationale. As seen in Shayara Bano, preserving patriarchal norms cannot override the fundamental rights to equality and autonomy. Moreover, less restrictive measures – such as promoting mutual respect within marriage – could achieve the same objectives without infringing on a woman’s autonomy.

MRE and the “normative deficit” in Indian law
Rochana Bajpai’s argument on group-differentiated rights is a viable theoretical lens to examine MRE. Bajpai’s theory sheds light on why certain profound constitutional guarantees remain unrealised despite their formal recognition. MRE epitomises what Bajpai calls a “normative deficit”- a lack of established and reasoned justifications to substantiate rights – in three crucial ways. First, akin to under-theorised protections of cultural and religious minority rights that Bajpai analysed, women’s sexual autonomy within marriage is bereft of a well-founded normative justification in Indian jurisprudence. Second, this lacuna of a robust normative justification has allowed patriarchal and misogynist assumptions to fill the void thereby perpetuating the fiction of what can be termed “perpetual consent”. Third and most critically, the failure to develop any normative justification has transversed constitutional silence to active institutional oppression.

This vacuum of normativity has several profound implications. Rather than just failing to protect married women’s rights, the legal system and the State actively participate in their subordination. MRE exemplifies not merely an oversight but also a systemic devaluation of constitutional principles- where the institution of matrimony, paradoxically, strips women of fundamental protections that they would otherwise possess. This state-endorsed hierarchy of rights shows how normative deficits can calcify into a stark constitutional deficit by allowing socially entrenched patriarchal norms to masquerade as statutory and legal principles.

The continued existence of MRE reveals how the lack of strong normative frameworks does not merely leave a void but creates room for unconstitutional practices to acquire legitimacy. Just like in the case of cultural and religious minorities, it so happens that these unconstitutional practices are often at the cost of minority protections.

The path forward
MRE stands as the epitome of constitutional abdication and normative failure in Indian law. Through its unconstitutional and inhumane preservation of patriarchal power within marriage, it not only contravenes fundamental rights but also legitimises gender inequality and violence in one of the most intimate spheres of human life. The constitutional challenge in Hrikesh Sahoo v. State of Karnataka gives the Supreme Court a historic opportunity to remedy this long-standing injustice. Such a step would go a long way in fulfilling the Constitutional promise of equal dignity and autonomy for all.

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All articles posted on this blog give the views of the author(s), and not the position of the Department of Sociology, LSE Human Rights, nor of the London School of Economics and Political Science.

Image credit: Prakhar Sharma

This post was originally published on LSE Human Rights.