Author: Ritika Singh, Sister Nivedita University
TO THE POINT
The Bharatiya Nyaya Sanhita (BNS), 2023 replaced the Indian Pen
al Code (IPC), but failed to remove the marital rape exception, thus preserving Exception 2 to Section 63, which exempts a husband from being prosecute for raping his wife , as long as she is over 18.
This exception is being widely challenged for violating women’s bodily autonomy, sexual consent, and the fundamental rights guaranteed by the Indian Constitution.
And also this exception continues to deny married women the fundamental right to sexual autonomy and bodily integrity, despite the evolving legal and constitutional framework that recognizes equality and individual dignity.
The clause is under intense legal and public scrutiny, with activists, legal scholars, and pending petitions arguing that it is unconstitutional, violating Articles 14 (equality), 15 (non-discrimination), and 21 (right to life and dignity). The challenge to this exception is not merely legal but moral, questioning whether marriage should ever be a license to override consent.
USE OF LEGAL JARGON
• Marital Rape Exception – A statutory clause that provides immunity to a husband from being prosecuted for rape if the act is committed against his wife, provided she is not under 18 years of age.
• Section 63, Bharatiya Nyaya Sanhita (BNS), 2023 – The new statutory provision replacing Section 375 IPC, which defines rape and retains the marital exception.
• Exception 2 to Section 63 – The specific clause that exempts a husband from rape charges within marriage:
“Sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
• Bodily Autonomy – A constitutional and human right that recognizes every individual’s right to make decisions over their own body without external influence.
• Articles 14, 15, 19, 21 (Constitution of India) –
• Article 14: Right to Equality
• Article 15: Prohibition of Discrimination
• Constitutional Morality – A principle advocating for upholding values enshrined in the Constitution, including dignity, liberty, and equality, even if they challenge social customs like immunity to marital rape.
• Public Interest Litigation (PIL) – A legal tool often used to challenge unconstitutional practices such as the marital rape exception.
• Decriminalization vs. Immunity – Decriminalization removes penal consequences, while immunity (like marital rape exception) provides legal protection despite the act meeting the ingredients of an offence.
THE PROOF
The Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the Indian Penal Code (IPC), aimed to modernize and Indianize criminal laws.
Exception 1 to Section 375 of the IPC and continues to uphold marriage as an exception to consent — a concept rooted in the outdated doctrine of “coverture” The wife had no separate legal identity from her husband.
I. Violation of Fundamental Rights
1. Article 14 – Right to Equality
• The marital rape exception indiscriminately differentiate between married and unmarried women while, an woman is protected under Section 63 BNS from non-consensual sex, a married woman is denied the same protection.
• There is no rational nexus or intelligible differentia that justifies such distinction. Consent is recognizes as the fundamental, regardless of marital status.
• Hence, the exception violates the principle of equality before law and equal protection of laws, both guaranteed under Article 14.
2. Article 15 – Prohibition of Discrimination
• The exception is discriminatory on grounds of sex and marital status, as it denies legal remedy to a wife, merely because she is married to the perpetrator.
II. Judicial Recognition of Sexual Autonomy in Marriage
Independent Thought v. Union of India (2017)
• Supreme Court read down Exception 2 to Section 375 IPC to make sex with a minor wife (<18 years) punishable as rape.
• It held that marriage cannot be a defense for statutory rape, and this judgment opened the door for questioning the larger marital rape immunity.
• The Court stated that “a child remains a child even if she is a married child.”
Joseph Shine v. Union of India (2018)
• While decriminalizing adultery, the Court emphasized gender equality within marriage and stated that marriage does not result in the loss of autonomy of the woman.
• The Court observed that the constitutional values of dignity, equality, and liberty cannot be sacrificed at the altar of patriarchy.
III. International Human Rights Standards
• India wreckage one of the few democracies that does not illegalize the marital rape.
• United Nations Human Rights Council, CEDAW Committee, and other international bodies have repeatedly urged India to remove this exception.
• Over 100 countries, including Nepal, Bhutan, Canada, UK, South Africa, Australia, and most of Europe, recognize marital rape as a crime.
ABSTRACT
The Bharatiya Nyaya Sanhita (BNS), 2023 was enacted to replace the colonial-era Indian Penal Code (IPC) with a more modern and indigenous criminal law framework. While the BNS introduced several reforms, it retained the marital rape exception under Exception 2 to Section 63, which states that sexual intercourse by a man with his own wife, provided she is above eighteen years of age, is not rape. This provision preserves the archaic legal doctrine that marriage constitutes implied and irrevocable consent to sexual relations, denying a married woman legal protection against non-consensual sex by her husband.
This exception has drawn sharp criticism from legal experts, gender rights activists, and constitutional scholars for violating the fundamental rights guaranteed under the Constitution of India, particularly:
• Article 14 (Right to Equality), as it arbitrarily discriminates between married and unmarried women;
• Article 15 (Prohibition of Discrimination), as it perpetuates gender-based and marital status-based discrimination;
• Article 21 (Right to Life and Personal Liberty), which includes the right to privacy, bodily autonomy, dignity, and sexual consent. The Supreme Court in Independent Thought v. Union of India (2017), the Court read down the exception for minor wives, acknowledging the inherent conflict with child rights and constitutional protections.
In response to nationwide demands following the Nirbhaya case, the Justice Verma Committee (2013) categorically recommended deleting the marital rape exception, calling it unjust, unconstitutional, and incompatible with the dignity of women.
On an international level, India is among the few democratic nations that have yet to criminalize marital rape. Over 100 countries, including Nepal, Bhutan, Canada, South Africa, and most of Europe, have recognized that marriage is not a defense to rape. The United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) and other global bodies have repeatedly urged India to remove this discriminatory clause.
Currently, the constitutional validity of the exception is under challenge before the Delhi High Court in the RIT Foundation v. Union of India case. Petitioners argue that the exception violates the core principles of equality and justice enshrined in the Constitution and that consent must be central to all sexual relationships, including within marriage.
This article critically examines the legal, constitutional, and ethical dimensions of the marital rape exception, highlighting the urgent need for legislative and judicial reform. It argues that retaining this exception undermines the very goals of the Bharatiya Nyaya Sanhita and India’s commitment to gender justice, and that criminalizing marital rape is not just a legal necessity, but a moral imperative in a democratic and rights-based society.
CASE LAWS
INDEPENDENT THOUGHT VS. UNION OF INDIA (2017)
Citation:
(2017) 10 SCC 800
Court:
Supreme Court of India
Bench: Justice Madan B. Lokur and Justice Deepak Gupta
Petitioner:
Independent Thought – a non-governmental organization working on child rights
Respondent:
Union of India
Issue:
Whether Exception 2 to Section 375 IPC, which allowed sexual intercourse between a man and his wife aged between 15 and 18 years, violated the rights of the girl child and was inconsistent with other child protection laws.
Background:
• Under Section 375 IPC, defines sexual intercourse with a girl below 18 years was examined rape.
• Exception 2, however, stated that if the girl was the wife of the man and aged above 15, it would not amount to rape.
• This created a legal anomaly: sexual intercourse with a girl under 18 was rape under general law, but not if she was married to the perpetrator.
• Also the petitioner was questioned this exception as violative of the Constitution and inconsistent with:
• The Protection of Children from Sexual Offences (POCSO) Act, 2012 (which defines a child as anyone under 18)
• The Prohibition of Child Marriage Act, 2006 (which sets 18 as the legal age for marriage for girls)
Legal Questions:
• Can a minor girl (aged 15–18) be denied the protection of rape laws just because she is married?
• Does Exception 2 violate Articles 14, 15, and 21 of the Constitution?
Judgment:
Held: Exception 2 to Section 375 IPC is unconstitutional to the extent that it allows sexual intercourse with a minor wife (under 18 years of age).
The Supreme Court read down Exception 2, declaring that sexual intercourse with a wife aged below 18 will amount to rape, even if she is married.
Observations:
• Marriage cannot be a defense for rape when the wife is a minor.
• The law must treat all girls under 18 equally, regardless of marital status.
• The Court emphasized that consent from a child is legally irrelevant and allowing marital rape for minors is discriminatory and violative of child rights.
• The judgment aligned IPC with POCSO and the child marriage laws, removing the contradiction.
Significance:
• First major step in challenging the marital rape exception in Indian law.
• Recognized that child marriage does not give license for sexual violence.
• Opened the door for broader arguments that consent matters in marriage, even for adult women
JOSEPH SHINE VS. UNION OF INDIA (2018)
Citation:
(2019) 3 SCC 39
Court:
Supreme Court of India
Bench:
Constitution Bench –
Dipak Misra (CJI), R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra, JJ.
Date of Judgment:
27 September 2018
Petitioner:
Joseph Shine – a non-resident Indian filed a Public Interest Litigation (PIL) challenging the constitutionality of Section 497 IPC and Section 198(2) CRPC.
Respondent:
Union of India
Facts of the Case:
• Adultery was defined as sexual intercourse with a married woman, knowing or having reason to believe she was married, without the consent or connivance of her husband.
• The provision punished only the man, not the woman, treating her as a passive victim or property of her husband.
• The petitioner challenged the law as being discriminatory, arbitrary, and violative of fundamental rights.
Issues:
• Whether Section 497 of IPC is unconstitutional for being violative of Articles 14, 15, and 21 of the Constitution?
• Whether adultery should be treated as a criminal offence or merely a civil wrong?
Arguments
Petitioner’s Arguments (Joseph Shine):
• Violation of Article 14 (Equality before Law):
• Section 497 IPC is arbitrary and discriminatory as it punishes only men.
• It treats women as passive victims and not as equal participants in adultery.
• It creates a legal fiction where consent of the husband overrides a woman’s autonomy.
• Violation of Article 15 (Prohibition of Sex-based Discrimination):
• The law protects women from punishment solely based on their gender, which is sex-based classification without rational nexus.
• Violation of Article 21 (Right to Life and Personal Liberty):
• The law violates a woman’s dignity, sexual autonomy, and bodily integrity.
• Marriage does not strip a woman of her individuality or identity.
• Colonial Origins of the Law:
• The law was based on outdated notions from the 19th century where women were considered chattel or property of their husbands.
• No Rational Nexus with Protecting Marriage:
• Criminalizing adultery does not actually protect the institution of marriage.
• Civil remedies like divorce already exist.
Respondent’s (Union of India) Arguments:
• State Interest in Preserving the Institution of Marriage:
• The law acts as a deterrent to adultery, thus protecting the sanctity of marriage.
• Legislative Wisdom:
• The exception for women was based on the idea of protecting them from social stigma and prosecution.
Judgment (Unanimous)
Held:
• Section 497 IPC and Section 198(2) CrPC are unconstitutional and struck down.
Observations:
• Gender Discrimination (Article 14 & 15):
• The law discriminates on the basis of gender by only penalizing men.
• It treats a woman as the property of her husband, reinforcing patriarchal norms.
• Violation of Personal Liberty (Article 21):
• Marriage does not mean consent is perpetual.
• A woman has full right to her bodily autonomy, privacy, and sexual freedom even after marriage.
• No Justification for Criminalization:
• Adultery is a civil wrong, not a criminal offence.
• Criminal law should not invade private spaces unless it involves violence or coercion.
CONCLUSION
The holding the marital rape peculiarity Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 stands as a sharp reminder that patriarchal inheritance still fill modern legal structures. Despite progressive constitutional interpretations and societal advancements, Indian criminal law continues to deny married women the same protection against sexual violence as their unmarried counterparts.
As judicial pronouncements increasingly emphasize bodily autonomy, sexual consent, and gender equality, the marital rape exception appears unjustifiable, unconstitutional, and morally indefensible. Marriage should never be viewed as a license to ignore consent, nor should it shield sexual violence under the guise of tradition.
To truly uphold the spirit of the Constitution and the goals of gender justice, it is imperative that lawmakers and the judiciary revisit and strike down this exception. Criminalizing marital rape is not just a legal reform — it is a societal necessity, one that affirms the dignity and equality of all women, regardless of marital status.
FAQS
Why is the exception considered unconstitutional?
It violates Articles 14, 15, and 21 of the Indian Constitution by discriminating against married women, denying them equal protection under the law, and violating their dignity and bodily autonomy.
Is there any case challenging this exception?
Yes. The RIT Foundation v. Union of India case, pending before the Delhi High Court, challenges the marital rape exception as unconstitutional and has gained national attention.
Has the Supreme Court said anything directly about marital rape?
Not yet in definitive terms. However, the Supreme Court in cases like Joseph Shine and Independent Thought has recognized the importance of sexual autonomy within marriage, laying the foundation for future judicial intervention.
Do other countries criminalize marital rape?
Yes. Over 100 countries, including Nepal, Bhutan, Canada, the UK, and South Africa, criminalize marital rape. India remains one of the few democratic countries that still recognize marriage as a defense to rape.
