Author: Mahak Chatkele , a student of Rabindranath Tagore university
Introduction
She said no. He did not stop. And when she went looking for the law ; the law told her that inside a marriage, her no did not count.
Marital rape is the act of a spouse engaging in sexual intercourse with their partner without consent. It is assault. It is violation. It is a crime recognised by over 100 countries across the world. In India, it is a legal exception.
Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita 2023 carrying forward the identical language of the old Indian Penal Code states that sexual intercourse by a man with his own wife is not rape, provided the wife is not under eighteen years of age. A single sentence. A sentence that has been stripping married women of bodily autonomy since 1860.
This is not a grey area. This is not a complex constitutional question that requires decades of deliberation. This is a law that tells a woman your consent inside marriage is optional. And it has told her this for over 160 years.
This article examines what that exception means, what the law currently offers married women, and why the argument that marriage implies consent is not just legally wrong it is constitutionally indefensible.
Abstract
India remains one of the few democracies in the world where marital rape is not a criminal offence. Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita 2023 explicitly exempts a husband from rape charges for non-consensual intercourse with his wife, provided she is above eighteen years of age. This exception inherited directly from colonial-era legislation is premised on the now-discredited notion that marriage constitutes perpetual consent.
This article examines the constitutional validity of the marital rape exception, analyses judicial responses including the landmark Delhi High Court split verdict of 2022, and argues that the exception violates Articles 14, 19, and 21 of the Constitution of India. It further draws on international legal standards and comparative jurisdictions to argue that India’s continued silence on marital rape is not a legal position it is a failure of legislative will. A woman does not surrender her fundamental rights at the altar. The law must stop pretending she does.
To the Point
Marriage is not a contract of perpetual consent. It never was. But Indian law has treated it as one since 1860 and in doing so, has handed every married woman in India a legal reality where her body belongs less to herself than to the institution she entered.
The marital rape exception is not a gap in the law. It is a deliberate carve-out ; a choice made by legislators to place the sanctity of marriage above the bodily integrity of the woman inside it. A choice carried forward from the Indian Penal Code 1860 into the Bharatiya Nyaya Sanhita 2023 without amendment, without debate, and without apology.
The origin of this exception traces back to Sir Matthew Hale, a 17th century English jurist who wrote that a husband cannot be guilty of rape upon his wife because by their matrimonial consent she has given herself up to her husband which she cannot retract. This reasoning written in 1736 forms the philosophical foundation of a law that governs married women in India in 2024.
Meanwhile, the Supreme Court has held in K.S. Puttaswamy that privacy and bodily integrity are fundamental rights. It has held in Joseph Shine that laws premised on a wife’s subordination to her husband are unconstitutional. It has held in Independent Thought that a minor wife can be raped by her husband in the eyes of the law. Yet the adult wife remains unprotected.
The point is plain ; India’s constitution has moved. India’s criminal law has not.
Legal Jargon
Marital Rape Exception — A legal provision that exempts a husband from criminal prosecution for rape committed against his wife, premised on the doctrine of implied matrimonial consent. Currently encoded in Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita 2023.
Bodily Integrity — The fundamental right of every individual to sovereignty over their own body, recognised as flowing from Article 21 of the Constitution of India under the right to life and personal liberty.
Implied Consent — A legal doctrine suggesting that consent to an act can be inferred from conduct or circumstances rather than expressed explicitly. The marital rape exception applies this doctrine to marriage itself an application widely rejected in contemporary jurisprudence.
Conjugal Rights — Legal rights arising from the marriage relationship, including the right to cohabitation. Indian courts have historically used this concept to resist criminalising non-consensual sex within marriage.
Doctrine of Coverture — A colonial-era legal principle under which a woman’s legal identity merged with her husband’s upon marriage. The marital rape exception is a surviving remnant of this doctrine in Indian criminal law.
Article 14 — The constitutional guarantee of equality before law and equal protection of laws. The marital rape exception creates a classification between married and unmarried women that has no rational nexus to a legitimate legislative aim.
The Proof
Society has always found ways to make the victim invisible. The data around marital rape in India makes that invisibility measurable.
According to the National Family Health Survey 5 (2019-2021), approximately 32% of married women in India reported experiencing physical, sexual, or emotional violence from their husbands. Of these, sexual violence within marriage constitutes a significant proportion yet because marital rape is not a criminal offence, none of these women had access to the specific legal remedy their experience demanded.
A 2014 study by the International Centre for Research on Women found that one in three Indian men surveyed admitted to forcing their wives into sex. The same study found that most perpetrators expressed no guilt because the law had told them there was nothing wrong.
Underreporting is absolute in this context. When the act is not a crime, there is no crime to report. Women who approach police are turned away, told this is a domestic matter, told to go home and preserve their marriage. The law does not just fail to protect them it actively instructs others to dismiss them.
The 2013 Justice Verma Committee, constituted in the aftermath of the Nirbhaya case, explicitly recommended the criminalisation of marital rape. The recommendation was ignored. The Criminal Law Amendment Act 2013 reformed rape law in significant ways but left the marital rape exception intact. That choice was not an oversight. It was a decision.
The proof is in every woman who was told her no did not count and found the law agreeing.
Case Laws
The judicial history of marital rape in India is a history of courts circling a conclusion they have not yet been willing to reach.
RIT Foundation v. Union of India — Delhi High Court Split Verdict (2022)
This is the most significant judicial development on marital rape in recent Indian legal history. A division bench of the Delhi High Court delivered a split verdict ; Justice Rajiv Shakdher held that the marital rape exception was unconstitutional, violating Articles 14, 19, and 21. Justice C. Hari Shankar held the opposite, arguing that criminalising marital rape would destabilise the institution of marriage. The split sent the matter to the Supreme Court, where it remains pending. The verdict exposed with clarity that Indian judiciary itself is divided not on the facts of the harm, but on how much the institution of marriage should be protected at the cost of the woman inside it.
Independent Thought v. Union of India (2017)
The Supreme Court held that sexual intercourse with a minor wife constitutes rape regardless of marital status, striking down the exception for wives between fifteen and eighteen years of age. The judgment was a partial victory ; it protected minor wives but left adult wives entirely unprotected. Justice D.Y. Chandrachud’s concurring opinion went further, questioning the constitutional validity of the marital rape exception for adult women entirely planting a judicial seed that the Supreme Court has yet to fully harvest.
Joseph Shine v. Union of India (2018)
The Supreme Court struck down the adultery law under Section 497 IPC, holding that it treated wives as property of their husbands and was premised on the subordination of women within marriage. The judgment’s reasoning applies directly to the marital rape exception ; if a wife is not her husband’s property for the purposes of adultery law, she cannot be his property for the purposes of consent either.
K.S. Puttaswamy v. Union of India (2017)
The nine-judge bench’s recognition of privacy as a fundamental right under Article 21 provides the strongest constitutional foundation for challenging the marital rape exception. Bodily autonomy the right to decide what happens to one’s own body flows directly from this judgment. A law that removes that autonomy the moment a woman marries is a law that cannot survive constitutional scrutiny.
Analysis
The marital rape exception rests on three arguments that the government and its defenders have historically advanced. Each one collapses under examination.
The first argument is that criminalising marital rape will destabilise the institution of marriage. This argument places the institution above the individual it prioritises the survival of a social structure over the physical safety of the woman inside it. No other crime is excused on the basis that prosecuting it might inconvenience an institution. A husband who assaults his wife in any other way faces criminal liability. The idea that sexual assault is uniquely exempt because it occurs within marriage has no logical foundation only a patriarchal one.
The second argument is that existing laws domestic violence provisions, cruelty under Section 498A BNS adequately protect married women from sexual violence. They do not. The Protection of Women from Domestic Violence Act 2005 recognises sexual abuse within marriage as a form of domestic violence but provides only civil remedies protection orders, residence orders, compensation. It does not criminalise the act. A civil remedy for a criminal harm is not justice. It is administrative management of ongoing violation.
The third argument is that false cases will be filed by wives seeking to harass their husbands. This argument that the possibility of misuse justifies removing a legal protection entirely is applied to no other crime. Men are not immune from murder charges because false murder cases exist. The fear of misuse has never been accepted as a reason to decriminalise genuine harm in any other context. Its selective application to marital rape reveals its true purpose to protect husbands, not to serve justice.
India’s constitution is unambiguous. Article 14 guarantees equality. A law that treats married women as having fewer rights over their own bodies than unmarried women is a law that cannot survive Article 14 scrutiny. Article 21 guarantees the right to life and personal liberty a right the Supreme Court has repeatedly held includes dignity, privacy, and bodily integrity. A law that removes bodily integrity from married women the moment they enter marriage cannot survive Article 21 scrutiny either.
The Supreme Court has the case before it. The question is not whether the exception is constitutional. The question is when the court will say so.
Conclusion
She said no. He did not stop. And the law the one that was supposed to see her, name what happened to her, and hold him accountable looked away.
Marital rape is not a complicated legal question dressed in constitutional language. At its core it is simple did she consent? If the answer is no, it is rape. The identity of the perpetrator does not change the nature of the act. The existence of a marriage certificate does not transform violation into something else.
India criminalised the dowry death. It criminalised domestic violence. It criminalised child marriage. Each of these reforms was resisted on the same grounds that it would interfere with the family, destabilise marriage, invite misuse. Each resistance was wrong. This one is too.
Over 100 countries have criminalised marital rape. The UK did it in 1991. South Africa in 1993. Nepal in 2006. Each of these countries still has marriages. The institution did not ucollapse when the law decided that the woman inside it deserved protection.
A woman does not surrender her fundamental rights at the altar. Her consent does not become permanent on the day of her wedding. Her body does not become her husband’s property because the law has not yet caught up with the constitution it claims to serve.
The Supreme Court has the exception before it. Parliament has the power to remove it. Both have had the opportunity for years.
She is still waiting. And the law : the one that was meant to protect her owes her an answer.
FAQ
Q1. Is marital rape completely legal in India?
Currently yes, for adult wives. Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita 2023 exempts a husband from rape charges for non-consensual intercourse with his wife above eighteen years of age. However, a wife can seek civil remedies under the Protection of Women from Domestic Violence Act 2005, which recognises sexual abuse within marriage as a form of domestic violence. The criminal gap remains wide open.
Q2. What is the current status of the marital rape case in the Supreme Court?
Following the Delhi High Court’s split verdict in 2022, the matter was referred to the Supreme Court of India. The case is currently pending before a constitutional bench. No final judgment has been delivered as of 2024, leaving the exception intact in the interim.
Q3. Why has Parliament not criminalised marital rape despite repeated recommendations?
The Justice Verma Committee in 2013 explicitly recommended criminalisation the recommendation was not acted upon. Successive governments have cited concerns about misuse, impact on the institution of marriage, and the need for societal consensus. Critics argue these justifications reflect legislative unwillingness to prioritise women’s bodily autonomy over cultural and political considerations. The result is a law that has not changed since 1860.
