Authored By: Satyansh Sinha
Amity University Patna
Introduction
Every year, criminal courts across India convict husbands under provisions dealing with cruelty and domestic violence, yet the same courts remain powerless to convict those husbands for rape, however violent or non consensual the act may have been.
This immunity survives because Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita 2023 declares that sexual intercourse by a man with his own wife, provided she is not under eighteen years of age, does not constitute rape.[1] The provision is a near verbatim continuation of Exception 2 to Section 375 of the repealed Indian Penal Code 1860, a colonial era formulation rooted in the seventeenth century doctrine that a wife surrenders her consent irrevocably upon marriage.[2]
This article argues that the marital rape exception cannot survive scrutiny under Articles 14, 19(1)(a) and 21 of the Constitution of India, and that its retention in the Bharatiya Nyaya Sanhita represents an incomplete and inconsistent legislative reform. The discussion proceeds in three parts. It first outlines the statutory framework and its judicial history. It then examines the constitutional infirmities of the exception through the lens of equality, autonomy and dignity. It concludes with concrete recommendations for reform.
The Statutory Framework and Its Origins
Section 63 of the Bharatiya Nyaya Sanhita defines rape broadly, covering penile penetration, object insertion and oral acts committed without consent, under seven specified circumstances. Exception 2 to this section, however, carves out an immunity for husbands, stating that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.
Prior to 2017, the corresponding exception under the Indian Penal Code fixed the protected age at fifteen years. The Supreme Court in Independent Thought v Union of India read down the exception to raise this threshold to eighteen years, aligning it with the Protection of Children from Sexual Offences Act 2012.[3] That statute treats any sexual act with a person below eighteen years as an offence regardless of consent, and the Court found it untenable that the same child could be denied protection merely because she was married.[4]
When Parliament enacted the Bharatiya Nyaya Sanhita in 2023, an exercise explicitly framed as removing colonial vestiges from India’s criminal law, it incorporated the revised age but left the underlying immunity for adult wives entirely untouched. The result is a curious legislative posture in which the state accepts that a child wife requires protection from her husband, while an adult wife enjoys no equivalent protection whatsoever, regardless of the degree of force or coercion involved.
III. Judicial Treatment of the Exception
Indian courts have addressed the marital rape exception unevenly, producing a body of case law that is instructive but inconclusive. In Independent Thought, the Supreme Court confined its intervention to child wives, holding that treating a wife between fifteen and eighteen years as capable of matrimonial consent violated her bodily integrity and conflicted with the protective scheme of the POCSO Act.[5] The Court expressly declined to examine the position of adult wives, leaving that question open for a future bench.
That question reached the Delhi High Court in RIT Foundation v Union of India, where a two judge bench delivered a split verdict.[6] Justice Rajiv Shakdher held that the exception was manifestly arbitrary and discriminatory, violating Articles 14 and 21 by denying married women the same protection against non consensual sex that unmarried women enjoy.[7] Justice C Hari Shankar took the contrary view, holding that the institution of marriage carries a legitimate expectation of sexual access, and that criminalizing marital rape would require legislative rather than judicial intervention.[8]
Because of this split, the matter was carried further, and a related challenge from the Karnataka High Court in Hrishikesh Sahoo v State of Karnataka now stands before the Supreme Court, with an interim stay in place since 2022.[9] As of 2026, the Supreme Court has yet to deliver a final verdict on the constitutional validity of the exception, and the matter remains one of the longest pending constitutional challenges in recent memory.
Two further decisions inform the analysis without addressing marital rape directly. In Justice K S Puttaswamy v Union of India, the Supreme Court recognized privacy as intrinsic to Article 21, holding that decisional autonomy over one’s own body and intimate relationships forms part of personal liberty.[10] In Joseph Shine v Union of India, the Court struck down the offence of adultery, holding that marriage does not extinguish a spouse’s sexual autonomy or entitle one partner to treat the other as property.[11] Read together, these judgments furnish the constitutional vocabulary through which the marital rape exception may be tested, even though neither case decided the question directly.
Testing the Exception Against the Constitution
Three provisions of the Constitution bear directly on the validity of Exception 2. Under Article 14, a classification must rest on an intelligible differentia bearing a rational nexus to the object of the law. The object of Section 63 is to punish non consensual sexual acts and protect bodily integrity. Marital status has no logical bearing on whether an act is consensual or on the harm suffered by the victim, so the classification between married and unmarried women fails the rational nexus test, a conclusion consistent with the recognition in State of Karnataka v Krishnappa that rape is a deeply humiliating violation of dignity regardless of the relationship between the parties.[12]
Under Article 21, the right to life and personal liberty has been read to include bodily autonomy and reproductive choice, as affirmed in Suchita Srivastava v Chandigarh Administration[13] and reinforced by Puttaswamy.[14] Forced sexual intercourse within marriage negates precisely this autonomy, and the exception effectively withdraws a fundamental right the moment a woman marries.
Under Article 19(1)(a), some petitioners have argued that the freedom of expression includes a right to sexual self determination, encompassing the right to refuse. The state has resisted these arguments, contending that criminalizing marital rape risks destabilizing family life and inviting misuse of criminal process, echoing objections it raised before the Justice Verma Committee following the Delhi gang rape case of 2012.[15] Yet other provisions of criminal law, including those addressing dowry cruelty and domestic violence, already operate within marriage without any comparable blanket immunity, suggesting that safeguards against misuse can be built into evidentiary standards rather than achieved through a wholesale exclusion of the offence.
Conclusion
The marital rape exception rests on a doctrine that Indian law has otherwise abandoned, the notion that a wife’s consent is given once and cannot thereafter be withdrawn. This article has argued that the exception cannot be reconciled with Articles 14, 19(1)(a) and 21 of the Constitution, and that its retention in the Bharatiya Nyaya Sanhita 2023 sits uneasily beside Parliament’s stated intention of removing colonial vestiges from criminal law. The Supreme Court, when it finally rules on the pending challenge, should extend the reasoning of Puttaswamy and Joseph Shine to strike down Exception 2 in its entirety. Should the Court decline to do so, Parliament should amend Section 63 directly, removing the marital immunity while retaining ordinary evidentiary safeguards against false complaints. Bodily autonomy cannot be a right that a woman possesses only until she signs a marriage register, and Indian constitutional law is best served by saying so without qualification.
Reference(S):
Cases
Hrishikesh Sahoo v State of Karnataka, Special Leave Petition (Criminal) No 4063 of 2022 (Supreme Court of India, pending)
Independent Thought v Union of India (2017) 10 SCC 800
Joseph Shine v Union of India (2019) 3 SCC 39
Justice K S Puttaswamy v Union of India (2017) 10 SCC 1
RIT Foundation v Union of India 2022 SCC OnLine Del 1404
State of Karnataka v Krishnappa (2000) 4 SCC 75
Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1
Legislation
Bharatiya Nyaya Sanhita 2023
Constitution of India 1950
Indian Penal Code 1860 (repealed)
Protection of Children from Sexual Offences Act 2012
Other Sources
Ministry of Home Affairs, Justice Verma Committee, Report of the Committee on Amendments to Criminal Law (2013)
[1]Bharatiya Nyaya Sanhita 2023, s 63, exception 2.
[2]Indian Penal Code 1860, s 375, exception 2 (repealed by the Bharatiya Nyaya Sanhita 2023).
[3]Independent Thought v Union of India (2017) 10 SCC 800.
[4]Protection of Children from Sexual Offences Act 2012.
[5]Independent Thought v Union of India (2017) 10 SCC 800, paras 90 to 92.
[6]RIT Foundation v Union of India 2022 SCC OnLine Del 1404.
[7]ibid (opinion of Shakdher J).
[8]ibid (opinion of Hari Shankar J).
[9]Hrishikesh Sahoo v State of Karnataka, Special Leave Petition (Criminal) No 4063 of 2022 (Supreme Court of India, pending); interim order dated 19 July 2022.
[10]Justice K S Puttaswamy v Union of India (2017) 10 SCC 1.
[11]Joseph Shine v Union of India (2019) 3 SCC 39.
[12]State of Karnataka v Krishnappa (2000) 4 SCC 75.
[13]Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1.
[14]Justice K S Puttaswamy v Union of India (2017) 10 SCC 1.
[15]Ministry of Home Affairs, Justice Verma Committee, Report of the Committee on Amendments to Criminal Law (2013) ch 3.
