Author By– Siddhi Goswami
Institution– Lady Shree Ram College (University of Delhi)
ABSTRACT
Marital rape remains a legally unrecognized offence in India, protected under Exception 2 to Section 375 of the Indian Penal Code, 1860, and its equivalent under Section 63 of the Bharatiya Nyaya Sanhita, 2023. This provision violates the constitutional rights guaranteed to women under Article 14, 15, and 21, which ensure equality, non-discrimination, and the right to live with dignity. Drawing from the feminist theory, judicial precedents, empirical data, and comparative international perspectives, this article explores the tension between this exception and evolving constitutional doctrines of consent, equality and dignity. Drawing on NFHS-5, 2021 data, the article reveals that nearly 95% of sexual violence against women occurs within marriage. The article concludes by arguing that criminalising marital rape is essential for harmonising rape law with India’s constitutional promise of bodily autonomy.
INTRODUCTION
Marital rape—defined as non-consensual sexual intercourse by a husband with his wife—is a form of intimate partner violence that violates a woman’s bodily autonomy, sexual integrity, and human dignity. Unlike in 150+ countries (UK, South Africa, Canada, and most Europe) where it is recognised as a criminal offence, in India, such violence is shielded by Section 63 of the Bharatiya Nyaya Sanhita, 2023, which declares that intercourse by a man with his wife—provided she is over 18—is not rape.
This exception exists despite India’s obligation under international human rights instruments, such as CEDAW (Article 1,2, and 5) and General recommendation No. 19, which explicitly classify marital rape as form of gender-based violence (CEDAW, 1992). It also stands at odds with the Indian Supreme Court’s evolving interpretation of Article 14, 15(1), and 21 of the constitution, which recognise the rights to equality, non-discrimination, and dignity (Justice K.S. Puttaswamy v. Union of India, 2017; Joseph Shine v. Union of India, 2018).
The National Family Health Survey-5, 2021 reports that 6% of ever-married women aged 18-49 have experienced sexual violence; in over 82% of those cases, the perpetrator was the current or former husband. According to The Hindu, March 2022 article, “Only 4.7% of sexual violence victims sought police help; none contacted the lawyer”.
The continued legal immunity of husbands undermines women’s right to bodily integrity, dignity, and equal protection. The question is no longer academic; Can India’s constitutional democracy still justify forced sex in marriage as a non-crime?
HISTORICAL AND LEGAL BACKGROUND
Exception 2 to Section 375 of the Indian Penal Code, 1860, drafted by Lord Macaulay, was influenced by 17th-century English jurist Sir Mattew Hale’s assertion that a husband cannot be guilty of raping his wife because she “has given herself up in this kind unto her husband, which she cannot retract”.
India’s rape laws have evolved significantly since then—but the marital exemption has endured. In 1983, reforms introduced Section 376A to address custodial rape and expanded the definition of consent. In 2013, following the Nirbhaya gangrape incident, the Criminal Law (Amendment) Act broadened the scope of sexual offences and acknowledged non-penetrative forms of sexual violence, but left Exception 2 untouched.
In contrast, many countries have long repealed similar exemptions like UK in 1991, South Africa in 2007 and the USA by the early 2000s.
Multiple Indian legal bodies have recognised the inconsistency. The Justice Verma Committee Report (2013) recommended deletion of the exception, stating that “the relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented.” However, the Law Commission of India’s 172nd Report (2000) took a more cautious view, citing social complexities.
CONSENT WITHIN MARRIAGE: LEGAL AND ETHICAL LENS
The cornerstone of rape law is consent—defined under the now-repealed Section 375 of the IPC (and retained verbatim in Section 2(73) of the Bharatiya Nyaya Sanhita, 2023) as an “unequivocal voluntary agreement” through words, gestures, or conduct, where a woman communicates willingness to participate in a sexual act. Crucially, the law recognises that consent obtained through fear, coercion, intoxication, or impersonation is not valid.
Yet, the marital rape exception presumes implied and irrevocable consent within the institution of marriage. This contradicts both the legal meaning of consent and evolving jurisprudence on sexual autonomy. In Joseph Shine v. Union of India, the Supreme Court held that “the autonomy of an individual is the ability to make decisions on vital matters of concern to life.” It clarified that marriage does not extinguish constitutional rights.
Feminist legal theorists argue that this presumed consent within marriage does not treat women as a citizen with agency, but as a possession with duties. Catherine MacKinnon notes that such a framework “renders women vulnerable in precisely the setting in which they are supposed to be safe.”
Empirical studies suggest that coercion in marital sex often occurs through economic dependence, social stigma, and fear of abandonment, rather than overt physical force. These forms of power imbalance, though subtler than physical assault, equally erode the ability to refuse. As per NFHS-5, about 18% of married women said they cannot say ‘no’ to their husband even if they did not want to have sexual intercourse.
ARGUMENTS FOR CRIMINALISING MARITAL RAPE
First, non-consensual sex inside marriage violates the constitutional guarantee of bodily integrity and decisional privacy under Article 21. The Supreme Court in K.S. Puttaswamy v. Union of India held that sexual autonomy is at the core of the right to privacy, which “does not evaporate on the wedding day.” The Justice Verma Committee reached the same conclusion.
Second, India is bound by international commitments. CEDAW General Recommendation 19 (1992) classifies marital rape as gender-based violence and directs states to enact criminal sanctions. India’s continuing immunity places India in a dwindling minority.
Third, the protection of women from Domestic Violence Act, 2005 offers only civil remedies—protection orders, residence rights, maintenance—but no penal consequences for forced sex; courts have repeatedly noted its “purely civil” nature, leaving a serious bodily offence without proportionate punishment.
Finally, global practice undermines claims of Indian exceptionalism. Several countries like UK, South Africa and Nepal have criminalized marital rape and comparative evidence shows no collapse of the family unit after reform.
ARGUMENTS AGAINST CRIMINALISING MARITAL RAPE
Critics warn of its potential misuse. Yet NCRB’s Crime in India 2020 report shows that “false” or “mistake of fact” closures occurred in fewer than 8%of rape investigations. And false complaints are already penalised by BNS.
Other fear is that criminalisation will destroy marriage; but existing laws like Section 85 of BNS and the DV Act already introduce accountability into marital relationships without dismantling them.
The difficulty of proving consent is raised as a concern, but this applies to all rape cases, not just marital ones. Courts already assess medical, testimonial, and circumstantial evidence.
Lastly, the availability of civil remedies does not negate the need for a criminal provision. Thus, the exemption entrenches legal inequality. The institution of marriage must not be allowed to function as legal cover for sexual violence.
JUDICIAL AND LEGISLATIVE DEVELOPMENTS
A landmark moment came in May 2022, when the Delhi High Court delivered a split verdict in RIT Foundation v. Union of India. Justice Rajiv Shakdher held Exception 2 to Section 375 IPC as unconstitutional, as it violated article 14, 15, and 21. In contrast, Justice C. Hari Shankar dissented, arguing that such a determination required legislative action rather than judicial interference, and that marriage carried its own “sexual obligations”.
Following the split, the matter was automatically referred to the Supreme Court, which is currently hearing a batch of petitions challenging the constitutionality of the marital rape exception. In October 2024, the bench led by Justice Pardiwala acknowledged the gravity of the issue but deferred final hearing due to the impending retirement of then Chief Justice D.Y. Chandrachud. The case was re-listed in 2025 before a new constitutional bench.
The government of India, in its December 2024 affidavit to the court, maintained that criminalising marital rape would have “far-reaching consequences” and required broader consultation. Despite this, the issue continues to surface through Public Interest Litigations, civil society activism, and a Private Member Bill introduced in February 2025 seeking to delete the marital rape exception from BNS section 63.
Meanwhile, the absence of consensus in parliament and the executive’s hesitance have placed the burden of constitutional adjudication on the judiciary.
THE WAY FORWARD
The immediate repeal of Section 63 Exception in the Bharatiya Nyaya Sanhita is essential to uphold the constitutional rights to equality, dignity, and bodily autonomy. Marriage must not be a license to override consent, and the law must reflect this basic principle.
There is also a critical need to sensitise police, judiciary, and medical personnel to handle marital rape cases with empathy and survivor-centric approaches. Training and protocols must acknowledge the unique power dynamics in intimate relationships.
Broader reforms are also needed to make criminal law gender-sensitive, especially in evidentiary and procedural rules. But legal change must be matched by societal transformation. Open, informed public dialogue on sexual consent within marriage is key to dismantling harmful stereotypes.
Marital Rape: Whether it should be criminalised under criminal law?
CONCLUSION
Consent must remain central, even within marriage. Presuming it violates the constitutional rights to dignity, equality, and bodily autonomy. The continued exception under Section 63 of the BNS, 2023 denies married women equal protection under the law.
A combined approach—legal, institutional, and cultural—is the only path forward to ensure that no woman is denied protection simply because she is married.
REFERENCES
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