Exception 2 to Section 375: Marital Rape Immunity

The High Court’s main arguments stood on the point of Exception 2 to Section 375 of IPC, which reads:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

This is a hangover from colonial morality borrowed from Victorian-era English law. It has been criticised as being out of line with modern human rights norms. Nevertheless, the High Court, under the binding statute, was forced to acquit Sharma of rape. The effect of the ruling was to reaffirm the proposition that the marital relationship is an automatic shield in statute against rape charges, irrespective of consent, force, or injury.

The court did consider, though, liability under Section 377 IPC, which penalizes “carnal intercourse against the order of nature,” and under Section 304 IPC, as the victim had died. The court, though, was unequivocal that so long as Exception 2 continues to operate, no rape conviction can hold where the accused person is the husband of the victim.