Authored By: Manvi Singh
IMS LAW COLLEGE
Introduction
A marriage certificate cannot be a substitute for consent. Yet Indian criminal law continues to treat marital status as relevant to whether certain non-consensual sexual acts can amount to rape. Section 63 of the Bharatiya Nyaya Sanhita, 2023 (BNS), which defines rape, retains an exception for sexual intercourse or sexual acts by a man with his own wife, provided that the wife is not under eighteen years of age.¹
The issue is not merely whether marriage should receive special legal protection. It is whether that protection should extend to a rule under which an adult married woman receives less protection against non-consensual sexual intercourse than an unmarried woman. The question has become particularly significant after the BNS came into force in July 2024, while constitutional challenges to the marital rape exception remain before the Supreme Court.²
This article argues that the marital rape exception should be removed because it is difficult to reconcile with constitutional guarantees of equality, dignity, privacy and bodily autonomy. At the same time, concerns about false complaints, evidentiary difficulties and the protection of marriage deserve consideration and should be addressed through safeguards rather than a blanket immunity. The article first examines the present legal framework, then analyses the leading Indian decisions, evaluates the competing arguments and finally considers lessons from jurisdictions that have abolished marital rape immunity.
The Existing Legal Framework
The Marital Rape Exception under the BNS
Section 63 of the BNS sets out the circumstances in which sexual intercourse or sexual acts constitute rape. The provision expressly incorporates the concept of consent and states that consent means an unequivocal voluntary agreement to participate in the specific sexual act.³ However, Exception 2 provides that sexual intercourse or sexual acts by a man with his own wife, where the wife is not under eighteen years of age, is not rape.⁴
The result is a statutory distinction based on marital status. Where the parties are not married, absence of consent may satisfy the definition of rape. Where the parties are married and the wife is an adult, the same conduct is excluded from Section 63. The exception therefore does more than recognise marriage as a special relationship; it changes the legal consequences of the absence of consent.
Section 67 and the Limited Protection for Separated Wives
The BNS separately addresses non-consensual sexual intercourse within marriage where the wife is living separately from her husband. Section 67 makes such intercourse punishable with imprisonment ranging from two to seven years and a fine.⁵ This provision shows that marriage does not make the issue of sexual consent wholly irrelevant to criminal law.
At the same time, the distinction between cohabiting and separated spouses creates a difficult question. If lack of consent can justify criminal liability after separation, the legal basis for disregarding the same lack of consent while spouses live together requires explanation.
Other Legal Remedies
The marital rape exception does not leave married women entirely without legal remedies. The Protection of Women from Domestic Violence Act, 2005 recognises sexual abuse as a form of domestic violence and provides protective and civil remedies.⁶ The BNS also criminalises cruelty by a husband or his relatives towards a married woman.⁷ These provisions are important but they do not make non-consensual sexual intercourse within marriage equivalent to rape.
III. Case Law Analysis
Independent Thought v Union of India
In Independent Thought v Union of India, the Supreme Court considered the earlier marital rape exception in the IPC in the context of minor wives.⁸ At that time, the exception protected a husband where his wife was above fifteen years of age. The Court read down the exception so that sexual intercourse with a wife below eighteen could not be protected by it.⁹ The decision did not determine whether the exception should be removed for adult married women.
RIT Foundation v Union of India
The Delhi High Court confronted the adult marital rape exception directly in RIT Foundation v Union of India. The challenge produced a split decision in 2022. Justice Rajiv Shakdher considered the exception unconstitutional, emphasising equality, dignity and bodily autonomy.¹⁰ Justice C Hari Shankar reached the opposite conclusion and placed greater weight on the distinct legal character of marriage and the institutional role of Parliament.¹¹
The importance of the judgment lies in the constitutional conflict it exposed: whether marital status can justify withdrawing a criminal law protection that is otherwise available to women.
Hrishikesh Sahoo v State of Karnataka
In Hrishikesh Sahoo v State of Karnataka, the Karnataka High Court declined to quash rape proceedings against a husband.¹² The Court did not finally decide the broader constitutional validity of the exception.¹³ The matter reached the Supreme Court, which stayed the Karnataka High Court judgment in July 2022.¹⁴
Critical Evaluation
Equality, Dignity and Bodily Autonomy
The strongest constitutional objection to the exception arises under Articles 14 and 21 of the Constitution. Article 14 guarantees equality before the law, while Article 21 protects life and personal liberty.¹⁵ In Justice KS Puttaswamy (Retd) v Union of India, the Supreme Court recognised privacy as a constitutional right closely connected with autonomy and dignity.¹⁶ Similarly, Suchita Srivastava v Chandigarh Administration recognised reproductive choice as part of personal liberty and affirmed the importance of bodily integrity and decisional autonomy.¹⁷
These principles create a strong basis for questioning a rule that treats marital status as sufficient reason to disregard the absence of sexual consent. The harm caused by non-consensual sexual intercourse does not become less serious because the person responsible is the victim’s husband.
Does Criminalisation Threaten Marriage?
One argument against criminalising marital rape is that it could destabilise marriage or encourage false complaints. These concerns deserve attention, but the possibility of misuse is not unique to this offence. The usual response in criminal law is careful investigation and evidentiary scrutiny rather than immunity for an entire category of conduct.
Criminalising marital rape would not mean that every marital disagreement becomes a rape case. The prosecution would still have to prove the offence according to ordinary criminal-law standards.
The Institutional Question: Courts or Parliament?
There is a stronger argument that reform should come from Parliament rather than judicial interpretation. The creation of a criminal offence, its punishment and its procedural safeguards involve policy choices that the legislature is institutionally equipped to make. The split in RIT Foundation reflects this concern.¹⁸ Parliament can address the issue directly by removing Exception 2 to Section 63 and making the ordinary law of consent applicable regardless of marital status.
Comparative Perspectives
The history of marital rape reform in other jurisdictions demonstrates that the abolition of marital immunity is legally possible without treating marriage itself as irrelevant. In R v R, the House of Lords rejected the common-law marital rape immunity and held that marriage did not prevent a husband from being guilty of rape against his wife.¹⁹
South Africa has adopted a statutory approach that defines rape around unlawful and intentional sexual penetration without consent and does not create a general marital immunity.²⁰ Nepal has likewise criminalised marital rape through its National Penal (Code) Act 2017.²¹
These examples are not directly transferable to India because each jurisdiction has its own constitutional structure and criminal procedure. Their relevance lies in demonstrating that consent-based criminal law can coexist with the legal institution of marriage.
Conclusion
The present marital rape exception places marriage in a position that is difficult to reconcile with modern constitutional principles of equality, dignity and bodily autonomy. The BNS continues to exclude consensuality as the decisive question in cases involving an adult wife, while Section 67 recognises criminal liability in the narrower situation where spouses are living separately.²²
The Indian case law shows an evolving judicial understanding rather than a settled constitutional position. Independent Thought limited the exception in relation to minors, while RIT Foundation and Hrishikesh Sahoo brought the adult marital rape question into direct constitutional debate. The Supreme Court’s jurisprudence on privacy and autonomy further strengthens the case for reconsideration.
The more convincing approach is therefore to remove Exception 2 to Section 63. Concerns about false complaints, evidence and the institution of marriage should be addressed through fair procedures and safeguards, not by denying married women the protection of rape law altogether. Marriage may create mutual rights and responsibilities, but it should not amount to permanent consent.
References and Bibliography
Cases
Independent Thought v Union of India (2017) 10 SCC 800.
Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
Joseph Shine v Union of India (2019) 3 SCC 39.
RIT Foundation v Union of India 2022 SCC OnLine Del 1404.
Hrishikesh Sahoo v State of Karnataka 2022 SCC OnLine Kar 371.
Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1.
R v R [1992] 1 AC 599 (HL).
Legislation
Constitution of India 1950.
Bharatiya Nyaya Sanhita 2023.
Bharatiya Nagarik Suraksha Sanhita 2023.
Protection of Women from Domestic Violence Act 2005.
Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007 (South Africa). National Penal (Code) Act 2017 (Nepal).
Footnote(S):
- Bharatiya Nyaya Sanhita 2023, s 63, Exception 2.
- Hrishikesh Sahoo v State of Karnataka SLP (Crl) Nos 4063–4064 of 2022. 3. Bharatiya Nyaya Sanhita 2023, s 63.
- ibid, s 63, Exception 2.
- ibid, s 67.
- Protection of Women from Domestic Violence Act 2005, s 3.
- Bharatiya Nyaya Sanhita 2023, s 85.
- Independent Thought v Union of India (2017) 10 SCC 800.
- ibid.
- RIT Foundation v Union of India 2022 SCC OnLine Del 1404.
- ibid.
- Hrishikesh Sahoo v State of Karnataka 2022 SCC OnLine Kar 371.
- ibid.
- Hrishikesh Sahoo v State of Karnataka SLP (Crl) Nos 4063–4064 of 2022, order dated 19 July 2022.
- Constitution of India 1950, arts 14, 21.
- Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
- Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1.
- RIT Foundation v Union of India 2022 SCC OnLine Del 1404.
- R v R [1992] 1 AC 599 (HL).
- Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007 (South Africa), s 3.
- National Penal (Code) Act 2017 (Nepal), s 219(4).
- Bharatiya Nyaya Sanhita 2023, ss 63, 67.
