RIT Foundation & Ors. v. Union of India & Ors.

1. Case Citation and Basic Information

• Case Name: RIT Foundation & Ors. v. Union of India & Ors.
• Clubbed With: Hrishikesh Sahoo v. State of Karnataka
• Citation: W.P.(C) No. 284/2015 (Supreme Court of India)
• Court: Supreme Court of India. Oral arguments began in October 2024 before a three-judge Bench comprising then-Chief Justice D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra; the Bench was reconstituted following the Chief Justice’s retirement in November 2024.
• Status: Ongoing. Hearings have proceeded over multiple sessions since October 2024, and no final judgment has been delivered as of this writing. Given how frequently this matter has been re-listed since 2022, readers should confirm the current hearing status on the Supreme Court’s official case-status portal before relying on this summary.
• Area of Law: Constitutional Law, Criminal Law, Gender Justice

2. Introduction

This case is one of the most significant constitutional challenges pending before the Supreme Court of India. It puts forward a direct question: can a man claim legal immunity under Section 63 of the Bharatiya Nyaya Sanhita, 2023 for raping his own wife simply because they are married? The legal provision under challenge is Exception 2 to Section 375 of the Indian Penal Code, 1860 (IPC),¹ which was carried forward into Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023 (BNS).²

The marital rape exception is a colonial-era rule rooted in the now-discredited idea that a wife gives permanent and irrevocable consent to sexual intercourse upon marriage. The case is landmark because it forces the Court to decide whether this legal fiction can survive the constitutional guarantees of equality, dignity, and personal liberty that every Indian citizen enjoys.

3. Facts of the Case

In 2015, RIT Foundation, a Delhi-based NGO working on women’s rights, filed a public interest litigation (PIL) before the Delhi High Court challenging the constitutionality of Exception 2 to Section 375 IPC. Separately, Hrishikesh Sahoo, a man from Karnataka, was charged with rape and related offences after his wife filed a criminal complaint against him. When he sought to have the rape charge quashed by invoking the marital rape exception, the Karnataka High Court declined to do so, and his trial was later stayed by the Supreme Court pending resolution of the constitutional question. The two matters were eventually consolidated before the Supreme Court.

The Delhi High Court heard the matter at length and delivered a split verdict in May 2022.³ Because the two judges disagreed, the matter was referred to the Supreme Court. The Supreme Court has since heard extensive arguments from both sides, with oral arguments beginning in October 2024.⁴ The central legal question before the Court is whether the marital rape exception violates the Constitution of India.

4. Legal Issues

The following key questions of law are before the Court:

1. Whether Exception 2 to Section 375 IPC/Section 63 BNS violates Article 14 of the Constitution (right to equality) by treating married women differently from unmarried women with respect to the crime of rape?
2. Whether the exception violates Article 21 (right to life and personal liberty), which includes the right to bodily autonomy, sexual autonomy, and dignity?
3. Whether marriage can legally extinguish a woman’s right to say no to sexual intercourse?
4. Whether the exception is constitutionally valid in light of evolving interpretations of fundamental rights?

5. Arguments Presented

5.1 Petitioners’ Arguments

The petitioners argued that the exception is a direct violation of Articles 14, 19, and 21 of the Constitution.⁵ They contended that:

• Rape within marriage is no less harmful than rape outside it. The trauma, violation, and loss of dignity are identical in both scenarios. The law cannot treat them differently without a rational basis.
• The exception rests on a patriarchal and colonial fiction. The doctrine of “implied consent upon marriage” has no place in modern constitutional law.
• The right to bodily autonomy is a core part of the right to life under Article 21, as recognised by the Supreme Court in Suchita Srivastava v. Chandigarh Administration.⁶ A woman does not surrender this right upon marriage.
• India is one of a small number of countries that still retains this exception. The Law Commission (2000) and the Justice Verma Committee (2013) both recommended its removal.⁷

5.2 Respondents’ Arguments

The Union of India and certain intervenors opposing the petition argued:

• Criminalising marital rape could destabilise the institution of marriage and could be misused to file false cases against husbands.
• Alternative legal remedies already exist for a wife facing sexual coercion, such as domestic violence protection orders and divorce, making criminalisation of marital rape unnecessary.
• The matter involves complex social and policy questions best left to Parliament, not the judiciary.
• Marriage creates a unique relationship of mutual obligation and consent that the law may legitimately treat differently.

6. Court’s Reasoning and Analysis

Because the judgment is still pending, the Court’s final reasoning is not yet available. However, based on the proceedings and the earlier Delhi High Court split verdict, the following lines of analysis have emerged.

Justice Rajiv Shakdher of the Delhi High Court, whose dissent found the exception unconstitutional, reasoned that the exception fails the test of intelligible differentia under Article 14. There is no rational basis for treating a married woman’s non-consent differently from any other woman’s non-consent. He held that marriage does not diminish a woman’s individuality or her fundamental rights.

Before the Supreme Court, the Bench has engaged deeply with the question of what marriage means in constitutional terms, including whether the State’s interest in protecting the institution of marriage can override a woman’s right to her own body, and whether the existence of civil remedies — such as domestic violence law — is a sufficient substitute for criminal protection.

The Bench has noted that the right to dignity, central to Article 21, cannot be suspended inside the four walls of a home. Several judges indicated during hearings that treating rape within marriage as a lesser wrong, or no wrong at all, is difficult to reconcile with the constitutional framework.

7. Judgment and Ratio Decidendi

The final judgment is awaited. However, based on the trajectory of the case and the reasoning visible from hearings, the following outcomes are possible.

If the Court strikes down the exception, the ratio decidendi will likely be that marriage does not extinguish a woman’s fundamental right to bodily autonomy under Article 21, and that treating married and unmarried women differently in the law of rape violates Article 14. Non-consensual sex would be rape regardless of marital status. A woman retains her individuality even after entering into the sacrosanct union of marriage.

If the Court upholds the exception, the ratio would be that the classification has a rational nexus to the legislative objective of protecting marriage, and that Parliament, not the Court, is the appropriate forum for this reform. This view would likely also draw on the fact that marriage and divorce fall within the State List under the Seventh Schedule of the Constitution, making it an area where legislative — rather than judicial — reform is the more institutionally appropriate route.

The supporting case of Independent Thought v. Union of India (2017)⁸ already provides a partial ratio decidendi in this area: the Supreme Court judgment that criminalised sexual intercourse by a husband with his minor wife (under 18 years) by reading down Exception 2 to Section 375 of the IPC. The Court held that non-consensual sexual activity with a wife aged 15–18 is rape, aligning the IPC with the POCSO Act. This laid crucial groundwork for the present challenge.

8. Critical Analysis

8.1 Significance of the Decision

This case has the potential to be among the most transformative constitutional decisions in independent India’s history. It will define whether the constitutional promise of equality and dignity extends fully into the marital home, a space that the law has long treated as beyond scrutiny.

8.2 Supporting Case: Independent Thought v. Union of India (2017)

This case is an essential stepping stone to the present challenge. In Independent Thought, a two-judge Bench of the Supreme Court was asked whether it was constitutional to treat sex with a minor wife (aged 15–18) differently from rape of a minor girl.⁹

The Court held that the marital rape exception, to the extent it applied to girls between 15 and 18 years of age, was unconstitutional. The Bench reasoned that a minor girl’s bodily integrity cannot be overridden by her marital status. Although the Court expressly left open the question of adult wives, its reasoning — that marriage does not waive fundamental rights — directly supports the petitioners in the RIT Foundation case.

The significance of Independent Thought is that it partially dismantled the legal fiction of implied marital consent. It is the immediate legal ancestor of the present case and represents the Court’s gradual movement toward recognising that a woman’s constitutional rights do not disappear at the threshold of her matrimonial home.

8.3 Critical Evaluation

The respondents’ argument that criminalising marital rape will destabilise marriage or invite false cases is a policy concern, not a constitutional one. Identical fears were raised when dowry harassment and domestic violence were criminalised, yet the courts rightly rejected them. The potential for misuse cannot justify denying an entire class of victims any criminal protection.

The argument that Parliament should act, not the Court, is also weak in this specific context. The marital rape exception is not a creation of Parliament responding to a new social problem but a colonial inheritance that has survived only through legislative inertia. The Court’s role in striking down unconstitutional laws does not require Parliament’s prior action.

The strongest criticism of the current exception is this: it creates a situation where the same act, i.e., non-consensual sex, carries full criminal liability when committed by a stranger, reduced liability under domestic violence law when committed by a husband, and zero criminal liability for the act of rape specifically. This tiered system of protection based purely on the identity of the perpetrator is arbitrary and difficult to defend under any reading of Article 14.

That said, there are genuine questions about evidence and proof in marital rape cases that will need legislative attention, such as how consent is established in long-term relationships and what procedural safeguards should protect against abuse. However, these are implementation concerns, not reasons to deny the right altogether.

9. Conclusion

The RIT Foundation case asks a simple but profound question: does marriage make rape legal? The Constitution, with its guarantees of equality, dignity, and personal liberty, points to only one answer: no. The marital rape exception is a relic of a legal order that treated women as property rather than persons. Its survival in independent India is inconsistent with the constitutional vision of equal citizenship.

The supporting case of Independent Thought v. Union of India has already shown that the Supreme Court is capable of reading the Constitution as a living document that protects women inside marriage, not just outside it. When the Court delivers its judgment in RIT Foundation, it has the opportunity to complete that journey and bring Indian criminal law in line with both constitutional principle and international human rights standards.

Whatever the outcome, this case will shape how India understands the relationship between marriage, consent, and constitutional rights for generations to come.

10. Reference(S):

1. RIT Foundation & Ors. v. Union of India & Ors., W.P.(C) No. 284/2015, Supreme Court of India (ongoing).
2. Hrishikesh Sahoo v. State of Karnataka, Special Leave Petition, Supreme Court of India (pending).
3. Independent Thought v. Union of India, (2017) 10 SCC 800 (Supreme Court of India).
4. RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404 (Delhi High Court, Division Bench split verdict).
5. Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1 (Supreme Court of India).
6. The Indian Penal Code, 1860, s. 375.
7. The Bharatiya Nyaya Sanhita, 2023, s. 63.
8. Constitution of India, arts. 14, 19, 21.
9. Law Commission of India, 172nd Report on Review of Rape Laws (2000).
10. Justice Verma Committee Report on Amendments to Criminal Law (2013).

Endnotes

1. The Indian Penal Code, 1860, s. 375, Exception 2 stated: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

2. The Bharatiya Nyaya Sanhita, 2023, s. 63, Exception 2 retains the same exemption, now raising the wife’s minimum age to eighteen.

3. Delhi High Court Division Bench split verdict, RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404: Justice Rajiv Shakdher held the exception unconstitutional; Justice C. Hari Shankar upheld it.

4. RIT Foundation & Ors. v. Union of India & Ors., W.P.(C) No. 284/2015, Supreme Court of India (ongoing); clubbed with Hrishikesh Sahoo v. State of Karnataka, Special Leave Petition (pending).

5. Constitution of India, art. 14 (right to equality), art. 19(1)(a) (freedom of speech and expression, interpreted to include bodily autonomy), art. 21 (right to life and personal liberty).

6. Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1 (recognising reproductive autonomy under Art. 21).

7. Law Commission of India, 172nd Report on Review of Rape Laws (2000); Justice Verma Committee Report (2013), recommending removal of the marital rape exception.

8. Independent Thought v. Union of India, (2017) 10 SCC 800.

9. Independent Thought v. Union of India, (2017) 10 SCC 800, para. 93.