Authored By: T. Sparsha
College of Law for Women, AMS
Abstract
Consent forms the core of modern criminal jurisprudence, especially in laws dealing with sexual violence. Despite this, Indian criminal law continues to retain a marital rape exemption under Section 63 of the Bharatiya Nyaya Sanhita, which shields husbands from prosecution for non-consensual sexual intercourse with their wives above the age of eighteen. This exception, rooted in colonial-era assumptions about marriage and female subordination, stands in clear conflict with contemporary constitutional values of equality, dignity, and bodily autonomy. This article examines the marital rape exemption through constitutional, doctrinal, and comparative perspectives. It analyses judicial developments following landmark decisions on privacy and sexual autonomy, evaluates the arguments commonly advanced against criminalisation, and highlights the inconsistency between constitutional morality and existing criminal law. It argues that the continued existence of the marital rape exemption dilutes the concept of consent and violates Articles 14, 15, and 21 of the Constitution of India.
Introduction
Consent is the foundation upon which modern laws relating to sexual offences are framed. The recognition that every individual has autonomy over their own body and the right to refuse sexual access has transformed criminal jurisprudence across jurisdictions. In India, however, this recognition remains incomplete.
Section 63 of the Bharatiya Nyaya Sanhita exempts husbands from prosecution for rape committed against their wives, provided the wife is above eighteen years of age. This exemption rests on the assumption that marriage implies continuous and irrevocable consent to sexual relations. Such an assumption reflects outdated patriarchal beliefs and sits uneasily with the constitutional guarantees of dignity, equality, and personal liberty.
Indian constitutional jurisprudence has undergone a significant transformation over the past decade. The Supreme Court has recognised privacy as a fundamental right and affirmed sexual autonomy and equality within marriage by dismantling archaic moral notions in criminal law. Against this backdrop, the continued existence of the marital rape exemption raises an issue: whether marriage can operate as a legal space where consent loses its meaning.
Research Methodology
This article adopts a doctrinal and analytical research methodology. Primary sources include statutory provisions, constitutional articles, and judicial decisions of Indian courts. Secondary sources such as academic commentaries, law commission reports, and comparative legal materials from foreign jurisdictions have been relied upon to support critical evaluation.
Historical Origins of the Marital Rape Exemption
The marital rape exemption finds its roots in English common law and is commonly traced to Sir Matthew Hale, who asserted that a wife gives irrevocable consent to sexual intercourse upon marriage. This doctrine was closely linked to the principle of coverture, under which a married woman’s legal identity was subsumed under that of her husband.
During this period, marriage was viewed as a relationship of authority rather than equality, with sexual access treated as an inherent marital right. Colonial criminal law transplanted these assumptions into the Bharatiya Nyaya Sanhita. Despite significant social and constitutional change, this colonial doctrine continues to influence Indian criminal law.
Legal Framework under Indian Law
Section 63 of the Bharatiya Nyaya Sanhita defines rape on the basis of absence of consent. However, Exception 2 to the provision explicitly states that sexual intercourse by a man with his own wife, provided she is not under eighteen years of age, does not amount to rape. The Bharatiya Nyaya Sanhita, 2023, which replaced the Indian Penal Code with effect from 1 July 2024, has retained this exception without substantive modification.
As a result, this exception creates a legal distinction between married and unmarried women, denying equal protection against sexual violence to the former. Although the Protection of Women from Domestic Violence Act, 2005 recognises sexual abuse within marriage as a form of domestic violence, it offers only civil remedies. The Law Commission of India has previously acknowledged the need to revisit rape laws, yet marital rape remains excluded from criminalisation. This statutory framework, however, must be examined in light of constitutional guarantees that operate as the supreme law of the land.
Constitutional Analysis
Article 21: Right to Life, Dignity, and Bodily Autonomy
Article 21 guarantees the right to life and personal liberty and has been interpreted to include dignity, autonomy, and personal choice. In Justice K.S. Puttaswamy v. Union of India, the Supreme Court recognised decisional autonomy over intimate matters as an essential aspect of privacy.
Forced sexual intercourse violates bodily integrity and personal autonomy. The marital rape exemption effectively deprives married women of the protection of Article 21 by treating marriage as a waiver of bodily autonomy.
Article 14: Equality before Law
Article 14 prohibits arbitrary and unreasonable classification. In E.P. Royappa v. State of Tamil Nadu, the Supreme Court held that arbitrariness is antithetical to equality. The marital rape exemption creates a classification between married and unmarried women that bears no rational nexus to the object of rape law.
The doctrine of manifest arbitrariness, reaffirmed in Shayara Bano v. Union of India, further undermines the constitutional validity of the exemption.
Article 15: Prohibition of Discrimination
Although the exemption appears facially neutral, its impact disproportionately affects women. In Anuj Garg v. Hotel Association of India, the Supreme Court rejected gender-based stereotypes that restrict women’s autonomy. The marital rape exemption similarly reinforces stereotypes that prioritise marital obligations over consent, resulting in indirect discrimination.
Judicial Approach to Marital Rape
The Supreme Court addressed the marital rape exemption in Independent Thought v. Union of India, where it read down Exception 2 to raise the age of consent to eighteen years. However, the Court refrained from examining the constitutionality of the exemption for adult married women.
Earlier jurisprudence has recognised that a woman’s sexual autonomy does not dissolve upon marriage. Despite this recognition, courts have largely deferred the issue of criminalisation to legislative discretion, resulting in a persistent constitutional inconsistency.
Arguments Against Criminalisation and Their Limitations
Opponents of criminalising marital rape frequently argue that, criminalisation of marital rape, may destabilise marriage, lead to misuse of law, and pose evidentiary challenges. These concerns have been echoed by the government in judicial proceedings. However, the possibility of misuse cannot justify the blanket denial of criminal remedies to married women.
Criminal law already contains safeguards to address false accusations. Protecting the institution of marriage cannot come at the cost of legitimising violence within it.
Comparative Perspective
Several jurisdictions with similar colonial histories have abolished the marital rape exemption. In R v. R, the House of Lords held that marriage does not imply irrevocable consent to sexual intercourse. Canada criminalised marital rape through statutory reform, while South Africa has recognised it as a violation of constitutional rights. These developments reflect a global shift towards recognising consent as continuous and revocable, regardless of marital status.
Suggestions and Way Forward
The most effective reform would be the complete removal of Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita. Consent must be assessed uniformly, irrespective of marital status. Judicial interpretation should explicitly affirm sexual autonomy within marriage, consistent with constitutional morality. International human rights standards further support this approach.
Conclusion
The marital rape exemption represents a clear constitutional anomaly within Indian criminal law. While the Constitution guarantees equality, dignity, and personal liberty, the exemption perpetuates the belief that marriage overrides consent. As constitutional jurisprudence evolves, the justification for retaining this exception becomes increasingly untenable.
Marriage cannot be permitted to operate as a space where fundamental rights are silently suppressed. Criminal law must protect individuals from harm, not preserve institutions at the cost of human dignity. Recognising marital rape as a crime is not an attack on marriage but a reaffirmation of consent, autonomy, and constitutional supremacy.
Reference(S):
Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1.
E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.
Independent Thought v. Union of India, (2017) 10 SCC 800.
Joseph Shine v. Union of India, (2019) 3 SCC 39.
Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
R v. R, [1991] 1 AC 599 (HL).
Shayara Bano v. Union of India, (2017) 9 SCC 1.
State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC 57.
Bharatiya Nyaya Sanhita, 2023.
Law Commission of India, 172nd Report on Review of Rape Laws (2000).
Protection of Women from Domestic Violence Act, 2005.
UN Committee on the Elimination of Discrimination against Women, General Recommendation No. 35 (2017).
