Author: Nandini Shekhawat, Nirma University, Ahmedabad
To the Point
Among the most deeply contested silences in Indian criminal legislation is the statutory immunity granted to husbands who commit non-consensual sexual acts upon their wives. Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023 carrying forward the language of its colonial predecessor, Exception 2 to Section 375 of the Indian Penal Code, 1860 shields a husband from rape prosecution so long as his wife has crossed the age of eighteen. This legislative carve-out traces its intellectual origins not to Indian constitutional values but to an eighteenth-century English common law presumption articulated by Sir Matthew Halethat a woman, upon entering matrimony, surrenders in perpetuity her right to refuse sexual intercourse with her husband. A presumption that England itself discarded in 1991 continues, unrevised, to govern the legal rights of married women in India today.
The constitutional legitimacy of this exception reached a breaking point in May 2022, when a division bench of the Delhi High Court unable to reach a unanimous conclusion delivered a fractured ruling in RIT Foundation v. Union of India. One judge found the exception irreconcilable with fundamental constitutional guarantees; the other upheld it as a permissible legislative choice. The deadlock pushed the matter to the Supreme Court of India, where it now rests before a Constitution Bench, unresolved. What the Court eventually decides will not merely settle a point of criminal law it will determine whether the Indian Constitution’s promise of dignity and equality extends, without qualification, to women within the institution of marriage.
Use of Legal Jargon
The constitutional challenge to the marital rape exception draws upon a layered framework of criminal and constitutional law principles:
• Exception 2 to Section 63, Bharatiya Nyaya Sanhita, 2023 — This is the operative statutory clause under challenge. It carves out a specific category of sexual violence that committed by a husband upon his wife andplaces it beyond the definitional reach of rape under Indian criminal law. The provision’s constitutional sustainability forms the core of the pending Supreme Court proceedings.
• Implied Matrimonial Consent — A discredited common law presumption holding that a woman’s entry into marriage amounts to an advance, unconditional, and permanent surrender of her right to refuse sexual intercourse with her husband. No Indian constitutional provision supports this presumption, and its continued presence in statutory law is the primary basis of the petitioners’ challenge.
• Consent under BNS, 2023 — The statute’s own definition treats consent as a free, voluntary, and unambiguous communication of agreement. The marital exception operates as a legislative override of this definition presuming agreement where none may exist and removing the wife’s expressed refusal from legal relevance within the marriage.
• Intelligible Differentia and Rational Nexus — The two-stage constitutional test applied under Article 14 to evaluate the validity of any legislative classification. A classification survives only if the distinction it draws is founded on a genuine and discernible basis, and if that basis bears a real and logical connection to the purpose the law seeks to achieve. Critics argue the marital exception clears neither threshold.
• Section 85, Bharatiya Nyaya Sanhita, 2023 (formerly Section 498A, IPC) — Penalises a husband or his relatives for subjecting a wife to cruelty. In the absence of a marital rape offence, this provision has been deployed as an indirect and substantially inadequate mechanism to address spousal sexual violence one that neither names the wrong accurately nor imposes commensurate criminal consequences.
• Protection of Women from Domestic Violence Act, 2005 — Extends civil law protections — including protection orders, residence rights, and maintenance to women subjected to domestic violence, which the statute defines to include sexual abuse. The civil character of these remedies, however, leaves a significant gap where criminal accountability is concerned.
• Article 141 and Binding Precedent — Under Article 141 of the Constitution, the law declared by the Supreme Court is binding on every court within Indian territory. The Constitution Bench’s eventual ruling on the marital rape exception will therefore set an unequivocal and nationally binding standard on the question.
The Proof
A substantial body of data, legislative history, and judicial record establishes both the scale of spousal sexual violence in India and the inadequacy of the legal framework currently available to its victims:
• National Family Health Survey — 5 (2019–21) Survey data indicated that approximately 6.3% of ever-married women in India disclosed having experienced sexual violence perpetrated by their spouses. Given documented patterns of under-reporting in cases of intimate partner violence, the actual prevalence is widely believed to be significantly higher. Each of these women exists outside the protective reach of India’s rape laws.
• Justice Verma Committee, 2013 — Appointed by the Government of India following the December 2012 Delhi gang rape and tasked with recommending criminal law reforms, the Committee chaired by former Chief Justice of India J.S. Verma unequivocally recommended abolition of the marital rape exception. The Committee’s report described the exception as incompatible with constitutional guarantees of dignity and bodily integrity. The Criminal Law (Amendment) Act, 2013, which followed the report, declined to implement this recommendation.
• Delhi High Court — RIT Foundation v. Union of India (2022) — The divergence between the two judges encapsulated the broader national disagreement on the issue. Justice Rajiv Shakdher concluded that a married woman’s fundamental rights under Articles 14, 19, and 21 are directly violated by a provision that withholds from her the legal protection available to every other woman against rape. Justice C. Hari Shankar took the view that marriage constitutes a distinct social institution warranting different legislative treatment and that judicial invalidation of the exception would amount to impermissible encroachment upon the legislative domain.
• CEDAW Recommendations — The United Nations Committee on the Elimination of Discrimination Against Women has, across multiple review cycles, called upon India to remove the marital rape exception from its statute books, identifying the provision as a form of state-sanctioned gender discrimination inconsistent with the obligations India assumed upon ratifying the Convention in 1993.
• Independent Thought v. Union of India (2017) — While adjudicating the intersection of child marriage legislation and sexual offence provisions, the Supreme Court held that sexual intercourse with a wife below eighteen years of age constitutes rape regardless of the marriage. The Court’s reasoning that the fact of marriage cannot extinguish a woman’s right to refuse provided a constitutional foundation directly applicable to the broader challenge against the exception as it applies to adult wives.
• International Legislative Landscape — The criminalisation of marital rape is no longer a minority or progressive position globally it is the overwhelming legislative consensus. The United Kingdom criminalised it through judicial decision in 1991, later codified by Parliament. Canada, Australia, South Africa, Nepal, and over 150 other jurisdictions have enacted equivalent protections. India’s continued retention of the exception is an outlier position in contemporary comparative law.
• Government’s Position Before the Courts — In submissions before the Delhi High Court, the Union Government argued that the criminalisation of marital rape risked disrupting the institution of marriage and could generate frivolous litigation against husbands. These arguments have drawn sustained criticism from constitutional scholars and women’s rights advocates who contend that protecting the institution of marriage cannot constitutionally justify denying a class of victims access to criminal justice.
Abstract
The marital rape exception embedded in Indian criminal law represents an unresolved tension between colonial statutory inheritance and post-constitutional values. Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023 which insulates husbands from rape prosecution rests on a legal fiction of implied matrimonial consent that has been repudiated across the common law world and is irreconcilable with the Indian Constitution’s guarantees of equality, dignity, and bodily autonomy. A split verdict from the Delhi High Court in 2022 has referred the constitutional question to the Supreme Court of India, where it remains pending before a Constitution Bench. Drawing on the statutory text, constitutional doctrine, survey data, legislative history, and comparative jurisprudence, this article argues that the exception cannot withstand scrutiny under Articles 14 and 21 of the Constitution, and that its removal — whether through judicial invalidation or legislative amendment — is a constitutional imperative whose deferral has already cost millions of married women the equal protection of India’s criminal law.
Case Laws
Case
Year
Key Legal Significance
RIT Foundation v. Union of India (Delhi High Court)
2022
Fractured bench delivered split ruling on the constitutional validity of the marital rape exception; disagreement between the two judges on Articles 14, 19, and 21 necessitated Supreme Court reference.
Independent Thought v. Union of India(Supreme Court of India)
2017
Invalidated the marital exception as applied to wives below eighteen years; articulated the principle that matrimony cannot operate as a waiver of bodily autonomy — the foundational reasoning for the adult marital rape challenge.
Justice K.S. Puttaswamy v. Union of India (Supreme Court of India)
2017
A nine-judge Constitution Bench unanimously recognised privacy as a fundamental right under Article 21, encompassing within its scope bodily integrity and sexual autonomy — constitutional foundations directly engaged by the marital rape question.
Bodhisattwa Gautam v. Subhra Chakraborty(Supreme Court of India)
1996
Characterised rape as an assault upon the most fundamental human rights of the victim and a direct violation of the right to life under Article 21; established the dignity-based framework within which the marital rape challenge is now argued.
Nimeshbhai Bharatbhai Desai v. State of Gujarat (Gujarat High Court)
2018
While declining to recognise marital rape as a distinct criminal offence, the Court acknowledged that a husband’s coercive sexual conduct towards his wife constitutes cruelty cognisable under Section 498A IPC — an indirect judicial recognition of the wrong without the corresponding criminal remedy.
R v. R (House of Lords, United Kingdom)
1991
Abolished the common law marital rape exemption in England and Wales; held that the presumption of irrevocable matrimonial consent had no place in a modern legal system; cited as persuasive comparative authority in Indian proceedings.
Conclusion
The constitutional case against the marital rape exception does not require the court to venture into novel or unsettled territory. It requires only a faithful application of principles the Supreme Court has itself established across decades of fundamental rights jurisprudence. The right to dignity, articulated in Bodhisattwa Gautam. The right to privacy and bodily integrity, affirmed in Puttaswamy. The principle that marriage cannot override bodily autonomy, stated in Independent Thought. Each of these threads, when drawn together, points unmistakably to a single conclusion: a provision that tells a married woman her non-consent is legally invisible cannot survive constitutional scrutiny.
The counterarguments advanced in defence of the exception do not engage with constitutional doctrine they engage with social anxiety. The fear that criminalisation will be misused to destabilise marriages assumes that married women, uniquely among all complainants, cannot be trusted to approach the criminal law in good faith. The concern that it will constitute judicial overreach ignores the Court’s settled authority to invalidate legislation that violates fundamental rights. Neither argument constitutes a constitutional defence of the exception.
What is required now is clarityfrom either Parliament or the Supreme Court. Legislative amendment to Section 63, BNS, removing Exception 2 and replacing it with a framework that criminalises spousal sexual violence while providing appropriate procedural safeguards, would be the more comprehensive and durable solution. It would allow Parliament to calibrate the evidentiary standards, sentencing framework, and institutional support mechanisms that such prosecutions will require. But legislative deferral cannot be indefinite when fundamental rights are at stake. If Parliament continues to abstain, the Constitution mandates that the Court must act.
A married woman’s right to say no is not a threat to marriage. It is the minimum that the Constitution requires marriage to respect.
Frequently Asked Questions (FAQs)
Q1. What is the marital rape exception in Indian law?Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023 provides that sexual intercourse by a husband with his own wife does not constitute rape, as long as the wife is above eighteen years of age. This exemption effectively places spousal sexual violence outside the scope of India’s rape laws.
Q2. Where does this exception come from? The exception derives from an eighteenth-century English common law presumption — attributed to jurist Sir Matthew Hale — that a wife irrevocably consents to intercourse upon marriage. England abolished this presumption in 1991. India retained it through successive legislative exercises, including the Criminal Law (Amendment) Act, 2013 and the Bharatiya Nyaya Sanhita, 2023.
Q3. What happened in the Delhi High Court in 2022? A two-judge bench of the Delhi High Court delivered a divided ruling in RIT Foundation v. Union of India. One judge held the exception unconstitutional; the other upheld it. The absence of a majority conclusion meant the constitutional question could not be settled at that level and was referred to the Supreme Court.
Q4. What is the current legal position? The matter is pending before a Constitution Bench of the Supreme Court of India. Until the Court delivers its verdict, the marital rape exception remains part of Indian law and husbands cannot be prosecuted for rape committed upon adult wives.
Q5. What remedies does a wife currently have against spousal sexual violence? A wife may seek relief under Section 85 of the BNS (cruelty by husband), the Protection of Women from Domestic Violence Act, 2005, or Section 377 IPC in cases involving unnatural offences. These remedies are widely regarded as insufficient substitutes — they do not carry the criminal recognition, definitional clarity, or sentencing gravity of a rape prosecution.
Q6. How does India compare to other countries on this issue? India is among a small and diminishing group of countries that retain a marital rape exception. Over 150 jurisdictions — spanning common law, civil law, and religious law traditions — have criminalised marital rape. The global legislative consensus treats spousal sexual violence as a criminal wrong equivalent in gravity to rape outside marriage.
