Author: Manisha. K , Christ Academy Institute of Law
Linkedin Profile: https://www.linkedin.com/in/manisha-k-8b75992aa?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=ios_app
To the Point
The Indian Penal Code (IPC) was formally superseded in 2024 by the Bharatiya Nyaya Sanhita, 2023 (BNS), which introduced a number of progressive legal reforms aimed at updating the country’s criminal justice system. However, a serious flaw still exists: the ongoing legal exemption that protects marital rape from criminal prosecution. The BNS upholds the controversial Exception 2 under Section 63 (previously Section 375 of the IPC), which declares that “sexual intercourse by a man with his wife, the wife not being under eighteen years of age, is not rape,” despite decades of feminist advocacy, legal challenges, and court comments. Essentially, this legal exception normalizes non-consensual sexual behaviour within marriage and upholds antiquated notions of implied permission.
India still opposes this crucial reform in 2025, when international human rights norms place a strong emphasis on marital equality and personal liberty. Despite being denounced as a violation of fundamental rights by numerous Indian courts and international law, marital rape is nonetheless outside the purview of criminal law. According to this article, systematic violence against women is perpetuated and constitutional rights are undermined by the BNS’s unwillingness to make marital rape a crime.
Abstract:
This essay looks at how India’s new criminal law, the Bharatiya Nyaya Sanhita, 2023, noticeably does not make marital rape a crime. Husbands’ colonial-era immunity under Section 63 is still upheld by the legislative framework, despite progress in gender-sensitive legal reforms and growing awareness of sexual abuse. The essay contends that, in accordance with constitutional principles and international legal norms, marital rape must be recognised as a criminal offence through doctrinal analysis, case law examination, and comparative legal perspectives.
The main goal is to critically examine how institutional patriarchy and legal contradiction are reflected in the continuation of the marital rape exception. The paper provides a thorough understanding of how this legal abnormality threatens the rule of law by dissecting the legalese underlying implied consent, substantive equality, and constitutional morality. It assesses past and present legal difficulties, criticises the BNS’s strategy, and suggests changes based on constitutional mandates and international human rights commitments.
Use of Legal Jargon
Important legal ideas like implied permission, physical autonomy, constitutional morality, and the right to equality are at the centre of the discussion surrounding India’s criminalisation of marital rape. The theory of implied consent, which dates back to the Victorian era, holds that a woman gives her husband her approval to have sex after they are married. This presumption goes against contemporary interpretations of the Indian Constitution’s Articles 14 (equality before the law), 19(1)(a) (freedom of expression, including sexual expression), and 21 (right to life and personal liberty).
According to the constitution, the idea of substantive equality requires that the legal system take steps to alleviate the systemic inequalities that women experience. Section 63 of the BNS breaches the basic structure theory and encourages legal discrimination when it gives husbands immunity for actions that would otherwise be considered rape. According to the theory of constitutional morality, which has been applied in cases such as Navtej Singh Johar v. Union of India, individual liberties must be upheld notwithstanding prevailing social norms.
The Proof
Both societal and scientific evidence show how often marital rape is in India. According to the National Family Health Survey-5 (2019–21), about 29% of married women in the 18–49 age range have been victims of spousal sexual violence. However, because the act is not considered a crime by the law, extremely few complaints result in a legal remedy. Similar to this, NCRB data from 2022–2024 show that marital rape is barely reported, underscoring the way the law deters victims from pursuing justice.
The court record contains more evidence. The Delhi High Court heard compelling arguments in favour of overturning Exception 2 of IPC Section 375 in the RIT Foundation v. Union of India case. Despite the divided ruling, it was evident from the observations that the Exception infringes upon constitutional rights. The BNS maintained the marital rape exception under Section 63 in spite of these acknowledgements, which represents a legislative backward step.
The Law Commission of India’s 172nd Report from 2000 recommended doing away with the exception, however Parliament has not acted on it. In addition, India has consistently advocated for the criminalization of marital rape in its universal periodic assessments at the UN Human Rights Council. However, the state has maintained its exception on the grounds of maintaining marital peace, which is not consistent with contemporary legal precedent.
Case Laws
Union of India v. RIT Foundation, Delhi High Court (2022)
Despite the split verdict, both judges concurred that marital rape fundamentally undermines both personal liberty and bodily integrity. The case established a solid foundation for the moral and legal invalidation of the marital rape exception, but it has since advanced to the Supreme Court.
Union of India v. Joseph Shine (2018) 2 SCC 189
The court stressed individual liberty, dignity, and the unconstitutionality of legislation based on patriarchal ideals while dealing with adultery, striking down Section 497 IPC. The court ruled that women must be treated by the law as independent persons rather than as husbands’ property.
Union of India v. Navtej Singh Johar, 2018 10 SCC 1
This ruling upheld constitutional morality as a guiding concept in interpreting basic rights and decriminalised consenting gay activities. The court ruled that social morality must yield to individual liberty, a ruling that has direct relevance to the discussion of marital rape.
Union of India v. Independent Thought (2017) 10 SCC 800
The Supreme Court invalidated Section 375 IPC’s Exception 2 to make having sex with a minor wife illegal in this historic ruling. According to the court, the exception infringes upon Articles 14 and 21’s guarantees of equality and bodily integrity. The decision raised the prospect of doing away with the marital rape exemption for adult women altogether.
Conclusion
As India’s criminal justice system is still governed by the Bharatiya Nyaya Sanhita in 2025, the fact that marital rape is not illegal serves as a sobering reminder of the gender justice project’s incompleteness. Every essential tenet of equality, liberty, and justice protected by the Constitution is compromised by the legal immunity granted to husbands under Section 63. In addition to depriving married women of their right to bodily autonomy, the ongoing acceptance of this exception communicates the harmful message that marriage can be used as an excuse to commit violent crimes without consequence.
Although the judiciary has gradually improved via progressive interpretations, Parliament must be the source of true reform. The legislature must now carry on the constitutional promise of equality after the Supreme Court established the framework. India is additionally obligated to criminalise all forms of sexual violence, including inside marriage, in accordance with its international commitments under the UN Declaration on the Elimination of Violence Against Women and CEDAW.
FAQ
1. What is stated regarding marital rape in Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023?
Although rape is illegal under Section 63, there is an exception that specifies that a man’s sexual relations with his wife, provided she is older than 18, does not qualify as rape. This means that under this law, a husband cannot be accused of rape.
2. Doesn’t the domestic violence law provide protection?
A woman who has been sexually abused by her spouse may seek civil remedies (such as a protection order, residency order, etc.) under the Protection of Women from Domestic Violence Act of 2005. It does not, however, consider marital rape to be a crime that carries a jail sentence.
3. Why does the exception for marital rape still exist?
Making marital rape a felony, according to the administration, would undermine the integrity of marriage and promote abuse. However, this perspective is based on patriarchal ideas and ignores empirical data as well as legal principles relating to individual liberty and consent.
4. Can this exception be overridden by courts?
Only Parliament has the authority to change or remove a provision, but courts are able to interpret legislation in accordance with constitutional principles. Individual instances may benefit from judicial activism, but legislative action is necessary for systemic change.
5. What are the typical justifications for not making marital rape a crime?
Critics claim it will be difficult to prove, be abused, and jeopardies family values. These worries are mostly conjectural and unsupported by evidence. The majority of legal systems use protections to control these dangers without compromising justice.
