Authored By: Sonalika Bhambi
Vivekananda Institute of Professional Studies - Technical Campus
Introduction
A wife above the age of eighteen who is forced into sexual intercourse by her husband has, under Indian criminal law, suffered no rape at all. That remains true today, notwithstanding a decade of litigation, a change of government, and the wholesale replacement of the Indian Penal Code with a supposedly modernised criminal code. In 2024, the Union informed the Supreme Court that criminalising non-consensual intercourse within marriage would be “excessively harsh” and risked destabilising the institution of marriage.[1] That affidavit was filed in a batch of petitions challenging Exception 2 to Section 375 of the Indian Penal Code 1860 — a provision that has since reappeared, barely altered, as Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023.[2]
The Bharatiya Nyaya Sanhita was sold to Parliament as a clean break from colonial-era criminal law, a code finally rooted in Indian constitutional values rather than nineteenth-century Whitehall drafting.[3] Whatever else changed, the marital rape exception did not. Parliament raised the minimum age of the wife from fifteen to eighteen and left everything else as it was.[4] For a code marketed as reformist, this was a conspicuous missed opportunity.
This article takes the position that the exception, as it now stands in Section 63, cannot be squared with the Constitution. It rests on a fiction — that marriage carries with it a standing, irrevocable consent to sex — which Indian courts have already dismantled in closely related contexts, even if they have stopped short of dismantling it here. Piecemeal litigation has taken the law only so far, and it is argued below that legislative amendment, not further rounds of writ petitions, is what the situation actually calls for. Section II traces the exception from Section 375 of the old Penal Code into its present form under Section 63. Section III turns to the case law: the Delhi High Court’s split verdict, the parallel Karnataka proceedings, and where the matter presently stands before the Supreme Court. Section IV sets out the constitutional and policy objections to the exception, and considers the arguments made in its defence. Section V looks outward, to how England and Nepal handled the same question, before Section VI sketches what a workable reform might look like.
The Existing Legal Framework
Historical Continuity: From Section 375 IPC to Section 63 BNS
The exception did not spring from nowhere. It descends from the doctrine of coverture, set out by Sir Matthew Hale in the eighteenth century, under which a wife was taken to have given permanent consent to intercourse the moment she married.[5] Hale’s proposition made its way into Section 375 of the Indian Penal Code 1860 as Exception 2, which took any non-consensual intercourse between a husband and a wife above fifteen entirely outside the definition of rape.[6] For roughly a century and a half, nobody in a position to change it seriously tried.
That changed only slightly with Independent Thought v Union of India, where the Supreme Court read the exception down and raised the wife’s age from fifteen to eighteen, bringing Section 375 in line with the Protection of Children from Sexual Offences Act, 2012.[7] The Court was careful, though, to keep its reasoning tied to the particular vulnerability of the girl child; it said nothing about whether the exception could survive scrutiny as applied to adult married women, and made a point of leaving that question open.[8]
Exception 2 to Section 63 of the BNS, 2023
When the Bharatiya Nyaya Sanhita replaced the IPC, Exception 2 came along with it, now housed in Section 63: sexual intercourse or sexual acts by a man with his own wife, provided she is not under eighteen, do not amount to rape.[9] The only real change is that the eighteen-year line, which Independent Thought had merely read into the old provision, is now written into the statute itself.[10] Nothing in the new provision turns on how severe the act was, or how often it happened. An adult wife has no route to a rape charge against her husband, whatever the facts.
It would be inaccurate to say she has no legal recourse at all. Section 85 of the Bharatiya Nyaya Sanhita criminalises cruelty by a husband or his relatives, and the Protection of Women from Domestic Violence Act, 2005 lets a wife seek civil remedies, including protection orders, for sexual abuse within the relationship.[11] But neither carries the stigma, the penal weight, or the deterrent force of a rape conviction, and neither turns on proving the absence of consent to a sexual act in the way that rape does. The gap the Justice J S Verma Committee flagged back in 2013 is, in other words, still exactly where it was.[12]
III. Judicial Engagement with the Exception
The Delhi High Court Split Verdict
The closest the judiciary has come to a direct ruling on the exception’s constitutionality is RIT Foundation v Union of India, where a Division Bench of the Delhi High Court heard a batch of petitions against Exception 2 to Section 375 and could not agree.[13] Shakdher J would have struck it down. In his view, the provision drew an unreasonable line between married and unmarried women that Article 14 does not tolerate, and it trampled on a married woman’s right to bodily autonomy and dignity under Article 21.[14]
Hari Shankar J saw it differently. Marriage, on his reading, carries a reasonable expectation of sexual access between spouses; the presumption of constitutionality that attaches to a pre-constitutional provision, now re-enacted, had not been rebutted; and carving out a wholly new category of offence was Parliament’s job, not the Court’s.[15] Neither judge, notably, thought the question was easy — both granted leave to appeal, agreeing that the case raised substantial questions of law fit for the Supreme Court to resolve.[16]
Hrishikesh Sahoo and the Supreme Court Proceedings
A separate strand of litigation ran through the Karnataka High Court’s ruling in Hrishikesh Sahoo v State of Karnataka, where the Court refused to quash rape proceedings against a husband, holding that the exception could not simply shut the door on prosecution once the wife alleged forced intercourse.[17] The Supreme Court stayed that ruling while the connected matters were pending.[18] The clubbed petitions reached a Bench led by the then Chief Justice of India in January 2024, and there the momentum more or less stopped. The Union filed a lengthy affidavit that October resisting deletion of the exception, and a change in the Court’s composition pushed hearings back further.[19] By early 2026 the case sat before a reconstituted Bench, with no verdict date in sight.[20]
Meanwhile, the uncertainty has filtered down into inconsistent outcomes at High Court level. Karnataka let prosecution proceed; other High Courts have treated the exception as an absolute bar and dismissed complaints outright, regardless of what was alleged.[21] A married woman’s chance of a remedy, in effect, now depends on which High Court her case happens to land in — which is itself a reasonably strong argument that this is not a problem litigation alone is going to fix.
Critical Evaluation
The Obsolescence of Implied Consent
Strip the exception down to its logic and what remains is the idea that a marriage certificate amounts to standing, irrevocable consent to sex. That sits awkwardly, to put it mildly, next to the Supreme Court’s own recognition that privacy, dignity and bodily autonomy are built into Article 21.[22] Consent, everywhere else in constitutional doctrine, has to be free, specific, and capable of being withdrawn at any moment. There is no principled reason a wedding should be the one context where that logic simply stops applying. English courts reached the same conclusion decades ago, describing the fiction of implied consent as one that no longer matched the reality of how marriage works.[23]
Article 14 and the Logic of Independent Thought
There is also an equality problem that the Supreme Court has, oddly, already half-solved without following through. In Independent Thought, the Court found no intelligible differentia between a married and an unmarried girl child for the purposes of defining rape.[24] Ask the same question of adult women and the answer does not change. Non-consensual intercourse causes the same physical, psychological and reproductive harm whether or not the parties happen to be married. Restricting Independent Thought’s logic to minors, then, is a line the judgment’s own reasoning gives no real basis for drawing.
The Misuse Argument and Its Limits
Hari Shankar J’s opinion, and the Union’s 2024 affidavit, both lean on a familiar worry: that criminalisation would open husbands up to fabricated complaints and put marriages at risk.[25] It is not a frivolous concern, but it proves far too much. Dowry harassment, domestic cruelty under Section 85 of the Bharatiya Nyaya Sanhita, virtually every serious offence in the criminal code carries some risk of misuse. The standard response has never been to abolish the offence — it has been procedural safeguards, careful investigation, and judicial scrutiny before charges are framed.[26] Denying a remedy to genuine victims because some complaints might be false gets the ordinary logic of criminal law reform backwards.
Institutional Deference and Its Costs
There is something to Hari Shankar J’s point that creating new criminal liability is Parliament’s job, not the judiciary’s.[27] But that argument loses much of its force once one notices that Parliament already had its chance. Drafting the Bharatiya Nyaya Sanhita was precisely the moment to weigh the Verma Committee’s recommendation, and Parliament chose instead to re-enact the exception with a single cosmetic tweak.[28] Judicial restraint aimed at a legislature that has now declined reform twice does not really preserve the separation of powers; it just leaves the constitutional question hanging indefinitely, with married women bearing the cost in the meantime.
Comparative Perspectives
The United Kingdom
England got rid of the marital rape exemption over three decades ago. In R v R, the House of Lords held, unanimously, that a wife’s supposed irrevocable consent was a common law fiction that had simply stopped describing reality.[29] Parliament codified that position shortly after, and marital rape is now prosecuted under Section 1 of the Sexual Offences Act 2003 exactly as any other rape would be, with the marital relationship carrying no legal weight on the question of consent.[30] Nothing about this required inventing a new offence. It only required accepting that the offence already on the books had always applied within marriage, once the old fiction was dropped.
Nepal
Nepal offers a more directly comparable case study, given how much of its legal and social fabric resembles India’s. In Forum for Women, Law and Development v Government of Nepal, the Supreme Court struck down the marital rape exception then contained in the Muluki Ain, ruling that marriage cannot function as a licence to rape and that a wife’s bodily autonomy and dignity do not evaporate at the altar.[31] The Court directed Parliament to legislate accordingly, and the Muluki Criminal Code 2074 that followed criminalises marital rape outright, with a sentence of up to five years.[32] What India’s courts have hesitated to compel, Nepal’s managed through a fairly straightforward sequence: a judicial finding, followed by legislative codification.
A Broader Trend
Whichever way one looks at it, India is now the exception rather than the rule. Something in the order of one hundred and fifty countries have criminalised marital rape in some form, leaving India in the company of a small handful of states, among them Afghanistan, Bangladesh and Pakistan, that still exempt it outright for adult wives.[33] Being an outlier does not, on its own, make a law unconstitutional. What it does is undercut the claim that criminalisation is somehow unworkable or foreign to India’s social context — Nepal, a country whose social structures are not so different, has already shown that the sky does not fall.
Conclusion
Parliament had the whole of the Bharatiya Nyaya Sanhita’s drafting process to reconsider the marital rape exception, and it kept it anyway. That is not an oversight; it is a choice, and this article has tried to show why the choice does not hold up. It cannot be reconciled with the equality guarantee in Article 14 or the bodily autonomy protected under Article 21 — the very same constitutional guarantees the Supreme Court has already used to knock down comparable fictions of consent in Independent Thought and Puttaswamy.[34]
Both England and Nepal show that removing the exception is not the leap into the unknown its defenders make it out to be. One did it through judicial abolition of a common law fiction, the other through legislative codification after a court told it to — neither required inventing some unworkable new offence. The better course for Parliament would be to strike Exception 2 from Section 63 altogether, put rape within marriage on the same evidentiary and procedural footing as rape outside it, and pair that with stronger investigative safeguards to meet the misuse objection head-on rather than using it as an excuse to do nothing.[35]
Until that happens, the question left open in RIT Foundation and Hrishikesh Sahoo simply sits before the Supreme Court, unresolved, while married women subjected to non-consensual intercourse go without the protection every other woman in India is entitled to. A code that markets itself as a break from colonial law has little standing to make that claim while it still carries, almost word for word, a rule Sir Matthew Hale wrote down nearly three centuries ago.
Reference(S):
Table of Cases
Forum for Women, Law and Development v Government of Nepal, Writ No 55 of the year 2058 BS, Supreme Court of Nepal (2002)
Hrishikesh Sahoo v State of Karnataka (Karnataka High Court, 2022)
Independent Thought v Union of India (2017) 10 SCC 800
Justice K S Puttaswamy v Union of India (2017) 10 SCC 1
R v R [1991] UKHL 12
RIT Foundation v Union of India 2022 SCC OnLine Del 1404
Table of Legislation
Bharatiya Nyaya Sanhita 2023
Constitution of India 1950
Criminal Justice and Public Order Act 1994 (UK)
Indian Penal Code 1860 (repealed)
Muluki Criminal Code 2074 (Nepal)
Protection of Women from Domestic Violence Act 2005
Sexual Offences Act 2003 (UK)
Bibliography
Baker McKenzie, ‘Fighting Domestic Violence: Nepal’ (Baker McKenzie Resource Hub) <https://resourcehub.bakermckenzie.com/en/resources/fighting-domestic-violence/asia/nepal/topics/1legal-provisions> accessed 23 August 2026
CBC News, ‘Criminalizing marital rape would be “excessively harsh,” government argues in case heading to Supreme Court’ (CBC, 12 October 2024) <https://www.cbc.ca/news/world/india-marital-rape-law-supreme-court-case-1.7351968> accessed 23 August 2026
Feminism in India, ‘The Marital Rape Exception: What the Law Says and What It Refuses to See’ (Feminism in India, 14 April 2026) <https://feminisminindia.com/2026/04/14/the-marital-rape-exception-what-the-law-says-and-what-it-refuses-to-see/> accessed 23 August 2026
Hale M, History of the Pleas of the Crown (Sollom Emlyn ed, 1736)
JURIST, ‘India Supreme Court hears petitions on marital rape exception from criminal sanction’ (JURIST, 2024) <https://www.jurist.org/news/2024/10/india-supreme-court-begins-to-hear-petitions-against-exception-to-marital-rape-from-criminal-sanction/> accessed 23 August 2026
Section 63 of the Bharatiya Nyaya Sanhita (Wikipedia, 2026) <https://en.wikipedia.org/wiki/Section_63_of_the_Bharatiya_Nyaya_Sanhita> accessed 23 August 2026
Supreme Court Observer, ‘Challenge to the Marital Rape Exception’ (SCO) <https://www.scobserver.in/cases/challenge-to-the-marital-rape-exception-hrishikesh-sahoo-v-state-of-karnataka/> accessed 23 August 2026
Verma J S, Seth L and Subramanium G, Report of the Committee on Amendments to Criminal Law (23 January 2013)
[1]CBC News, “Criminalizing marital rape would be ‘excessively harsh,’ government argues in case heading to Supreme Court” (CBC, 12 October 2024) <https://www.cbc.ca/news/world/india-marital-rape-law-supreme-court-case-1.7351968> accessed 23 August 2026.
[2]Bharatiya Nyaya Sanhita 2023, s 63, exception 2.
[3]Ministry of Home Affairs, statements accompanying the introduction of the Bharatiya Nyaya Sanhita Bill, 2023, cited in Section 63 of the Bharatiya Nyaya Sanhita (Wikipedia, 2026) <https://en.wikipedia.org/wiki/Section_63_of_the_Bharatiya_Nyaya_Sanhita> accessed 23 August 2026.
[4]Bharatiya Nyaya Sanhita 2023, s 63, exception 2; compare Indian Penal Code 1860, s 375, exception 2 (as it stood after 2017).
[5]Sir Matthew Hale, History of the Pleas of the Crown (Sollom Emlyn ed, 1736) vol 1, 629, discussed in R v R [1991] UKHL 12.
[6]Indian Penal Code 1860, s 375, exception 2 (as originally enacted).
[7]Independent Thought v Union of India (2017) 10 SCC 800.
[8]ibid, paras 65–70.
[9]Bharatiya Nyaya Sanhita 2023, s 63, exception 2.
[10]Section 63 of the Bharatiya Nyaya Sanhita (Wikipedia, 2026) (n 3).
[11]Bharatiya Nyaya Sanhita 2023, s 85; Protection of Women from Domestic Violence Act 2005, s 3.
[12]Justice J S Verma, Justice Leila Seth and Gopal Subramanium, Report of the Committee on Amendments to Criminal Law (23 January 2013) paras 74–80, recommending deletion of the marital rape exception.
[13]RIT Foundation v Union of India 2022 SCC OnLine Del 1404.
[14]ibid (Shakdher J).
[15]ibid (Hari Shankar J).
[16]ibid; see also Supreme Court Observer, “Challenge to the Marital Rape Exception” (SCO) <https://www.scobserver.in/cases/challenge-to-the-marital-rape-exception-hrishikesh-sahoo-v-state-of-karnataka/> accessed 23 August 2026.
[17]Hrishikesh Sahoo v State of Karnataka (Karnataka High Court, 2022), discussed in Supreme Court Observer (n 10).
[18]Supreme Court Observer (n 10).
[19]JURIST, “India Supreme Court hears petitions on marital rape exception from criminal sanction” (JURIST, 2024) <https://www.jurist.org/news/2024/10/india-supreme-court-begins-to-hear-petitions-against-exception-to-marital-rape-from-criminal-sanction/> accessed 23 August 2026.
[20]Feminism in India, “The Marital Rape Exception: What the Law Says and What It Refuses to See” (Feminism in India, 14 April 2026) <https://feminisminindia.com/2026/04/14/the-marital-rape-exception-what-the-law-says-and-what-it-refuses-to-see/> accessed 23 August 2026.
[21]Feminism in India (n 13), noting divergent rulings of the Madhya Pradesh and Chhattisgarh High Courts.
[22]Justice K S Puttaswamy v Union of India (2017) 10 SCC 1, paras 297–298 (Chandrachud J).
[23]R v R [1991] UKHL 12 (Lord Keith of Kinkel).
[24]Independent Thought v Union of India (2017) 10 SCC 800, paras 79–82.
[25]RIT Foundation (n 9) (Hari Shankar J); CBC News (n 1).
[26]Justice J S Verma Committee Report (n 8) para 76, rejecting the misuse rationale as a ground for retaining the exception.
[27]RIT Foundation (n 9) (Hari Shankar J).
[28]Bharatiya Nyaya Sanhita 2023, s 63, exception 2; Justice J S Verma Committee Report (n 8).
[29]R v R [1991] UKHL 12.
[30]Sexual Offences Act 2003, s 1; Criminal Justice and Public Order Act 1994, s 142.
[31]Forum for Women, Law and Development v Government of Nepal, Writ No 55 of the year 2058 BS, Supreme Court of Nepal (2002), discussed in Baker McKenzie, “Fighting Domestic Violence: Nepal” (Baker McKenzie Resource Hub) <https://resourcehub.bakermckenzie.com/en/resources/fighting-domestic-violence/asia/nepal/topics/1legal-provisions> accessed 23 August 2026.
[32]Muluki Criminal Code 2074 (Nepal), s 219(4).
[33]Feminism in India (n 13).
[34]Independent Thought v Union of India (2017) 10 SCC 800; Justice K S Puttaswamy v Union of India (2017) 10 SCC 1.
[35]Justice J S Verma Committee Report (n 8) para 80.
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