RIT Foundation & Others v. Union of India & Others
Bench: Division Bench — 2 Judges (Rajiv Shakdher & C. Hari Shankar JJ) — Split Verdict
Parties
Facts of the Case
Section 375 IPC (rape) contains Exception 2, which provides that sexual intercourse by a husband with his own wife — the wife not being under fifteen years of age — is not rape. This exception effectively shields a husband from prosecution for rape of his wife regardless of consent. The petitioners — women's rights organisations and individuals — challenged this exception as unconstitutional: it denies married women the equal protection of rape law, treats them as inferior to unmarried women, and violates their bodily autonomy, dignity, and right to life under Articles 14, 15, and 21. The Union of India defended the exception citing marriage, social stability, and concerns about misuse.
Legal Issues Before the Court
- 1Is Exception 2 to Section 375 IPC (marital rape exception) unconstitutional as violating Articles 14, 15, and 21 of the Constitution?
- 2Does the marital rape exception deny married women the equal protection of the law guaranteed under Article 14?
- 3Does the exception violate the right to bodily autonomy and sexual autonomy of married women under Article 21?
The Judgment
The Delhi High Court delivered a historic split verdict in May 2022. Justice Rajiv Shakdher held that Exception 2 to Section 375 IPC is unconstitutional — it is an arbitrary and irrational classification that denies married women the same protection against non-consensual sex that unmarried women enjoy, violating Articles 14, 15, and 21. Justice C. Hari Shankar dissented, upholding the exception — holding that marriage is a legal institution creating specific rights and obligations, that the legislature had a rational basis for the distinction, and that the exception does not violate the Constitution. The split verdict was referred to the Supreme Court, where the matter is pending before a larger bench.
Key Principles Laid Down
MARITAL RAPE EXCEPTION — CONSTITUTIONAL CHALLENGE: Exception 2 to Section 375 IPC (marital rape exception) is directly challenged as unconstitutional in RIT Foundation (2022). The majority view (Shakdher J.) is that the exception violates Articles 14, 15, and 21 by treating married women as having lesser rights over their own bodies than unmarried women.
BODILY AUTONOMY — ARTICLE 21: Justice Shakdher held that a married woman's right to bodily autonomy — including the right to refuse sexual intercourse with her husband — is a core component of her right to life with dignity under Article 21. Marriage does not extinguish this right.
ARTICLE 14 — ARBITRARY CLASSIFICATION: The exception creates an arbitrary classification between married and unmarried women with respect to the same act (non-consensual intercourse). There is no rational nexus between the classification (marriage) and the object (preventing rape) — because rape is rape regardless of the relationship between perpetrator and victim.
DISSENT — LEGISLATIVE DOMAIN: Justice Hari Shankar held that the marital rape exception is a legislative choice within the permissible domain of Parliament, that marriage creates a distinct legal relationship, and that courts should not substitute their judgment for the legislature's on a complex social question.
CURRENT STATUS — SUPREME COURT PENDING: The RIT Foundation judgment (split verdict) has been referred to the Supreme Court, where the challenge to the marital rape exception remains pending before a larger bench. This is one of the most significant pending constitutional questions in Indian criminal law. The split verdict — with a sitting High Court judge for the first time holding the marital rape exception unconstitutional — has moved the debate from the legislative to the judicial arena. The Supreme Court's eventual decision will determine whether India joins the majority of countries that have abolished the marital rape exception. Under BNS 2023, Exception 2 to Section 63 (the equivalent of IPC 375) is retained, making the constitutional challenge equally applicable to the new code.
Impact on Indian Law
RIT Foundation (2022) is the highest-profile case on marital rape in India and the most significant pending constitutional question in Indian criminal law. The split verdict — with a sitting High Court judge for the first time holding the marital rape exception unconstitutional — has moved the debate from the legislative to the judicial arena. The Supreme Court's eventual decision will determine whether India joins the majority of countries that have abolished the marital rape exception. Under BNS 2023, Exception 2 to Section 63 (the equivalent of IPC 375) is retained, making the constitutional challenge equally applicable to the new code.
Frequently Asked Questions
Is marital rape a criminal offence in India?
Not under the IPC or the BNS 2023 — both retain Exception 2 to the rape provision, which exempts a husband from prosecution for rape of his wife (with the exception for wives below 18 years after Independent Thought v. Union of India, 2017). The constitutional validity of this exception is challenged in RIT Foundation v. Union of India (2022), where the Delhi High Court gave a split verdict — one judge holding the exception unconstitutional and one upholding it. The matter is pending before the Supreme Court of India and has not yet been decided.