Will Indian law continue to recognise a marital exception to rape?
Author : Akhlaque Nathani
Student of Jitendra Chouhan College of Law
Introduction
The Supreme Court of India has once again brought the contentious issue of marital rape into the centre of constitutional debate. On 9 September 2026, a three-judge Bench headed by Chief Justice Surya Kant, along with Justices Joymalya Bagchi and V. Mohana, directed that petitions challenging the marital rape exception be listed for final hearing after three weeks.
The case is significant because it raises a fundamental question: Does marriage affect an individual’s constitutional right to bodily autonomy and consent?
The Court has indicated that marriage cannot simply be treated as eliminating individual autonomy. At the same time, it has questioned whether courts can permit criminal prosecution where Parliament has expressly created an exception in the criminal law.
The Legal Position
Under the former Section 375 of the Indian Penal Code (IPC), Exception 2 excluded sexual intercourse by a man with his wife, where the wife was not below the prescribed age, from the definition of rape.
The Bharatiya Nyaya Sanhita, 2023 (BNS) has retained a similar provision. Section 63, Exception 2 provides that sexual intercourse or sexual acts by a man with his own wife, where the wife is not under 18 years of age, do not constitute rape.
An important change under the BNS is that the age threshold was raised to 18 years, providing protection to wives below that age.
What Is the Supreme Court Considering?
The Supreme Court is examining two interconnected questions.
First, can a husband be prosecuted for rape while the statutory marital exception remains in force?
Second, is the marital rape exception itself constitutionally valid?
The Court has raised the concern that if Parliament has expressly excluded certain conduct from the statutory definition of rape, allowing prosecution without first determining the validity of that exception could raise serious questions of statutory interpretation and constitutional law.
The proceedings therefore involve an important separation-of-powers question: What is the proper role of the judiciary and Parliament in changing criminal law?
Constitutional Dimensions
The challenge to the marital rape exception involves several constitutional principles.
1. Article 14 – Equality
Article 14 guarantees equality before law and equal protection of laws. Petitioners challenging the exception argue that treating married and unmarried women differently in relation to non-consensual sexual acts may create an unconstitutional classification.
2. Article 21 – Life and Personal Liberty
Article 21 has been interpreted broadly by the Supreme Court to protect dignity, privacy, bodily integrity and personal autonomy.
The central constitutional argument is therefore whether marriage can justify restricting these individual rights.
3. Individual Autonomy
One of the most significant observations emerging from the recent hearing is that marriage does not necessarily mean the extinction of individual autonomy. The Court has acknowledged the importance of personal autonomy while simultaneously examining the limits of judicial intervention in criminal legislation.
4. Separation of Powers
The Centre has argued that criminalising marital rape is fundamentally a matter for Parliament, rather than something that should be created by judicial interpretation.
This creates a classic constitutional tension between individual rights and legislative policy-making.
Why Is the Case Important?
The case goes beyond the question of marital rape. It may influence the broader understanding of:
• bodily autonomy within marriage;
• constitutional protection of dignity;
• equality between married and unmarried persons;
• interpretation of criminal statutes;
• judicial review of legislative exceptions; and
• the separation of powers between Parliament and the judiciary.
The Supreme Court has now scheduled the matter for final hearing after three weeks, making it one of the important constitutional and criminal-law issues to watch in the coming weeks.
Conclusion
The marital rape debate represents a difficult intersection of criminal law, constitutional rights, individual autonomy and legislative power.
The Supreme Court’s forthcoming hearing will not merely determine the interpretation of one criminal-law exception. It may also clarify how far constitutional courts can go when an existing criminal statute conflicts with evolving understandings of equality, dignity and personal autonomy.
At its core, the case asks a fundamental legal question: Can the institution of marriage justify an exception to an individual’s right to bodily autonomy?
The answer may have lasting consequences for the development of Indian constitutional and criminal law.
FAQs
1. What is marital rape?
Marital rape generally refers to non-consensual sexual intercourse or sexual acts by one spouse against the other. The current legal debate concerns whether such conduct by a husband against his adult wife should fall within the offence of rape.
2. What does Section 63 of the BNS say?
Section 63 defines rape and contains exceptions. Exception 2 currently excludes sexual intercourse or sexual acts by a man with his wife, provided the wife is not under 18 years of age.
3. Has the Supreme Court criminalised marital rape?
No. As of September 2026, the Supreme Court has not declared marital rape to be a separate criminal offence. It is examining challenges to the existing statutory exception.
4. What is the Supreme Court currently hearing?
The Court is examining the constitutional validity of the marital rape exception and whether prosecution can proceed against a husband under the existing legal framework.
5. What is the Centre’s position?
The Centre has argued that criminalising marital rape involves legislative policy and should therefore be decided by Parliament rather than created through judicial interpretation.
6. Why is Article 21 important in this case?
Article 21 protects life and personal liberty and has been interpreted to include important aspects of dignity, privacy and personal autonomy. These principles are central to theconstitutional challenge.
7. When will the Supreme Court hear the matter finally?
On 9 September 2026, the Court directed that the petitions be listed for final hearing after three weeks, with hearings scheduled on Wednesdays
