Authored By: Debangshi Paswan
University of Calcutta
Introduction
In India, the act of non-consensual sex is considered Rape, unless the woman is over eighteen years of age and the man forcing himself on her happens to be her husband. That is the effect of Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023 (BNS), the provision defining rape in India’s new criminal code.[1] Parliament substantively re-enacted this provision verbatim from Exception 2 to Section 375 of the Indian Penal Code, 1860 (IPC).[2] Given that the recent wholesale recodification presented a clear opportunity to abolish this exception, its retention underscores that it is a deliberate Legislative enactment. This article argues that the exception fails both the equality guarantee under Article 14 and the right to bodily autonomy under Article 21 of the Constitution, and that its survival into a freshly drafted code removes any remaining excuse for delay.
Marriage as a Consent Form Written into Law
Section 63 of BNS defines rape in familiar terms: sexual intercourse without consent, or consent obtained through fear, fraud, or intoxication. Conversely, Exception 2 removes an entire category of men from the reach of that definition; a husband cannot, in law, rape his wife, provided she is not below the age of eighteen. Consequently, law reduces the institution of marriage to a permanent, irrevocable waiver of sexual consent.
Judicial intervention has previously restricted the scope of this exemption, albeit only partially. In Independent Thought v. Union of India, the Supreme Court read down the equivalent IPC Section to elevate the age threshold from fifteen to eighteen years. The judiciary held that a minor wife lacked the legal capacity to consent for sexual intercourse, irrespective of her marital status.[3] Crucially, this protection only extended to minor wives. The majority explicitly noted that the constitutionality of the exception concerning adult wives remained an open question. When the codification of BNS presented an opportunity to resolve this constitutional ambiguity, the legislation chose to retain the statutory exception unaltered.
The Divided Judicial Response
The subsequent judicial rulings have been anything but conclusive. The Delhi High Court split down the middle in the case of RIT Foundation v. Union of India.[4] Justice Rajiv Shakdher found the exception violated Articles 14 and 21, reasoning that marital status does not constitute a rational basis to deny a woman’s right to sexual autonomy. Conversely, Justice C. Hari Shankar argued that the exception preserved legitimate marital expectations and that criminalization would destabilize the institution. A split verdict settles nothing beyond shifting the litigation to the Supreme Court via Appeal.
The jurisprudence across various State High Courts has grown fragmented. The Karnataka High Court in Hrishikesh Sahoo v. State of Karnataka, declined to grant a husband absolute protection, allowing criminal prosecution to continue where the alleged acts exceeded ordinary marital relations.[5] Following an appeal, the Supreme Court stayed the proceedings, tagging the matter with the pending RIT Foundation appeals. Conversely, the Madhya Pradesh High Court affirmed the statutory status quo in 2024, holding that non-consensual spousal intercourse does not legally constitute rape while the statutory exception persists.[6] Reinforcing this conservative view, the Chhattisgarh High Court acquitted a husband of criminal culpability connected to his wife’s death, giving the exception decisive weight even against a dying declaration that implicated him.[7]
The clubbed petitions have remained pending before the Supreme Court since January 2023, without a designated final hearing date, combined by a Union Government affidavit characterizing criminalisation as excessively harsh towards husbands.[8] Parliament has not been entirely silent; Legislative initiatives have signaled internal resistance. In December 2025, Member of Parliament Shashi Tharoor introduced a private member’s bill seeking the complete removal of this exception.[9] The statutory success rate for private member’s bills is historically low, but the introduction of one is itself a sign that patience with the status quo is thinning, inside Parliament as much as outside it.
Constitutional Challenges to the Exception
Article 14 of the Constitution permits statutory classification only where it rests on an intelligible differentia bearing a rational nexus to the legislative objective. The marital exception is typically justified as a means of preserving marital sanctity or mitigating the risk of fabricated spousal complaints. Neither rationale survives constitutional scrutiny. Since marriage does not repeal a person’s right to sexual autonomy, a classification predicated on marital status fails to establish a rational connection to any legitimate government objective; It protects the accused rather than the institution it is said to be protecting. Moreover, the apprehension of fraudulent complaints presents an Evidentiary Challenge for Courts rather than a jurisprudential basis for decriminalizing a distinct class of conduct. The Indian Criminal Justice System prosecutes numerous offenses susceptible to false allegations without granting absolute Immunity to an entire class of defendants.
Article 21 introduces an additional constitutional dimension. In K.S. Puttaswamy v. Union of India, a nine-judge bench determined that the right to privacy, encompassing decisional and bodily autonomy, is intrinsic to the right to life and personal liberty.[10] That right does not lapse at the threshold of a marital home. Accordingly, Justice Hari Shankar’s emphasis on preserving institutional stability falls short; removing the exception does not compel disclosure, divorce, or prosecution, it simply removes a blanket shield that finds no parallel in domestic criminal law. A comprehensive codification executed in 2023 had no reason to replicate an inequity that the Parliament had never, since 1860, been asked to justify.
Conclusion
The exception rests on a statutory classification that fails Article 14 and a silence that fails Article 21, and it survives today purely because three branches of government keep deferring to each other. The Judiciary remains split at the provincial High Court level, with the Apex Court failing to resolve the controversy for over three years. The Executive has resisted reform through its affidavit before the Court. Whereas, the Legislature, presented with an opportunity to abrogate this Exception during the 2023 codification, elected to maintain the status quo.
This cycle of institutional evasion is unsustainable. The Supreme Court should decide the consolidated petitions expeditiously and extend the doctrine established in Independent Thought to adult wives,since the constitutional defect it identified in the minor-wife exception, namely the invalidity of presumed consent, is not cured by a woman attaining majority. A marriage certificate should not function as a permanent waiver of the right to say no.
Reference(S):
Legislation
Bharatiya Nyaya Sanhita 2023, s 63.
Constitution of India 1950, arts 14, 21.
Indian Penal Code 1860, s 375 (repealed by the Bharatiya Nyaya Sanhita 2023).
Cases
Gorakhnath Sharma v State of Chhattisgarh (Chhattisgarh High Court, 10 February 2025).
Hrishikesh Sahoo v State of Karnataka (Karnataka High Court, 2022).
Independent Thought v Union of India (2017) 10 SCC 800.
K S Puttaswamy v Union of India (2017) 10 SCC 1.
Manish Sahu v State of Madhya Pradesh, M.Cr.C. No. 8388 of 2023 (Madhya Pradesh High Court, 1 May 2024).
RIT Foundation v Union of India, WP (C) No 284 of 2015 (Delhi High Court, 11 May 2022).
Secondary Sources
Affidavit of the Union of India in the marital rape exception petitions, Supreme Court of India (October 2024).
The Bharatiya Nyaya Sanhita (Amendment) Bill, 2025, Private Member’s Bill introduced by Shashi Tharoor, Lok Sabha (5 December 2025).
[1] Bharatiya Nyaya Sanhita 2023, s 63, Exception 2.
[2] Indian Penal Code 1860, s 375, Exception 2 (as it stood prior to repeal by the Bharatiya Nyaya Sanhita 2023).
[3] Independent Thought v Union of India (2017) 10 SCC 800.
[4] RIT Foundation v Union of India, WP (C) No 284 of 2015 (Delhi High Court, 11 May 2022).
[5] Hrishikesh Sahoo v State of Karnataka (Karnataka High Court, 2022).
[6] Manish Sahu v State of Madhya Pradesh, M.Cr.C. No. 8388 of 2023 (Madhya Pradesh High Court, Gwalior Bench, order dated 1 May 2024).
[7] Gorakhnath Sharma v State of Chhattisgarh (Chhattisgarh High Court, 10 February 2025).
[8] Affidavit of the Union of India in the marital rape exception petitions, Supreme Court of India, filed October 2024.
[9] The Bharatiya Nyaya Sanhita (Amendment) Bill, 2025, Private Member’s Bill introduced by Shashi Tharoor, Lok Sabha, 5 December 2025.
[10] K S Puttaswamy v Union of India (2017) 10 SCC 1.
