In this article we look at two judgments related to  the same sections of the Indian penal law namely, marital rape; one judgment  from the High Court of Karnataka dated 23 March 2022,; being Writ Petition 48367 of 2018[i]; (clubbed with other petitions) and  one from the High Court of Chhattisgarh,  being CRA No. 891/2019 dated 10 February 2025[ii]. Both centre around the exception to the offence of  rape; namely the non-criminalization of spousal rape.

This note is not a detailed commentary on the two judgements;, rather, an attempt to encourage students of law to read and research this aspect of the criminal law.

In both cases,  the accused was charged under Section 376  read with other sections of the  Indian Penal Code 1860 (IPC) as amended. Article 375 of the IPC defines the offence of rape and Article 376 of the IPC sets out the punishments.

As we know, the IPC  has now been repealed and replaced with the Bharatiya Nyaya Sanhita 2023 (BNS).

According to the exception under Article 375 of the IPC,  “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” The BNS retains this provision except that the age of fifteen years has been raised to eighteen years. Section 375 of the IPC is copied at the end of the Article for ease of reference.

The High Court of Karnataka held that Article 14 of the  Indian Constitution guarantees every person equality before the law and also protects a woman’s agency and consent after marriage.

The  High Court of Chhattisgarh however relied on the exception to Article 375 to acquit the accused husband. In this case, the wife died because of anal ruptures allegedly caused by her husband exercising his marital rights. However, since the women’s consent is not material after marriage no crime could be said to have been committed.

In the case before the High Court of Chhattisgarh  the victim was admitted in the hospital where her dying declaration, wherein she stated that due to an unnatural sexual act committed by her husband,  she became ill. The doctor who performed the post mortem opined that the cause of death was due to peritonitis and rectal perforation. Medical evidence showed that two perforations in the rectum were present, 1st perforation is present on anterior side of rectum approximately 1 cm above the pelvic floor and 2nd perforation  on left side of rectum about 2 cm above the pelvic floor.

The Additional Sessions Judge (FTC) Bastar Jagdalpur in Sessions  had convicted the accused husband  under Sections 2 / 17 377, 376 and 304 of the IPC and  sentenced him to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1000 among other punishments awarded under other sections of the IPC.

The Chhattisgarh High Court in its judgment stated that  since the age of wife was not below age of 15 years;  any sexual intercourse or sexual act by the husband with his wife cannot be termed as rape under the circumstances, as such absence of consent of wife loses its importance, therefore, this Court was of the considered opinion that the offence under Section 376 and 377 (unnatural sex)of the IPC against the accused husband  was not made out.

In the case before the High Court of Karnataka; the accused husband had approached the high Court to quash the cases registered against him under Section 376 IPC and other sections.

The  High Court  of Karnataka allowed the  trial to proceed, and   relied on the protections provided by the Indian Constitution. Article 14 provides for equality before law; Article 15 prohibits discrimination on the ground of religion, race, caste, sex or place of birth; Article 16 mandates equality of opportunity in matters of public employment; Article 21 depicts protection of life and personal liberty to all the citizens of the nation; Article 23 depicts prohibition of trafficking in human beings and forced labour; Article 39 depicts certain principles of policies to be followed by the State in securing rights of its citizens, emphasis is laid on women. Women have been considered to be entitled to reservation under Article 243D in the Panchayats and under Article 243T in the Municipalities in the respective elections. According to the judgment of the Karnataka high court; the constitutional provisions are the prism that depicts constitutional spirit towards right of its citizens, be it a man or a woman. Equality in Article 14 pervades through the entire spectrum of  the Constitution.

Here there was an inequality in the law; a woman being a woman is given certain status; a woman being a wife is given a different status. Likewise, a man being a man is punished for his acts; a man being a husband is exempted for his acts. It is this inequality that destroys the soul of the Constitution which is Right to Equality.

Further, the court held that there is no statute promulgated post the Constitution where there is no application of concept of equality as enshrined  in Article 14 of the Constitution of India. The Constitution is not a statute, but is the fountain head of all statutes. If the Constitution mandates equality, the statute ought to follow suit. If a man, a husband, a man he is, can be exempted of allegation of commission of ingredients of Section 375 of the IPC, inequality percolates into such provision of law. Therefore, it would run counter to what is enshrined in Article 14 of the Constitution. All human beings under the Constitution are to be treated equal, be it a man, be it a woman and others. Any thought of inequality, in any provision of law, would fail the test of Article 14 of the Constitution. Woman and man being equal under the Constitution cannot be made unequal by an Exception in a statute.

I would hope this article encourage students to research the current status of any pending cases on the exception to the rape statute; to check which countries criminalise marital rape and what is the position in Islamic law on this- whether the overriding principles of kindness and respect between a married couple set out in the Holy Quran can be overridden by absence of any specific law punishing marital rape.

Section 375 of the IPC defines rape as

Rape.—A man is said to commit “rape” if he—

• penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person;
•  or 33 (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person;
• or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person;
• or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions— First — Against her will. Secondly.— Without her consent. Thirdly. — With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly. — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. — With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly. — With or without her consent, when she is under eighteen years of age.

 Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception 1.A medical procedure or intervention shall not constitute rape. Exception 2.Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Section 63 of the BNS 2023 is the new section related to rape; with the age of consent being 18 years in the exception 2.

Endnotes

[i]Hrishikesh Sahu v. State of Karnataka 2022 SCC OnLine Kar 371

[ii]Gorakhnth Sharma v. State of Chattisgarh 2025 SCC OnLine Chh 2287