Published On: June 04, 2026
Authored By: Priyam Pratik
Faculty of Law, University of Allahabad
Abstract
On 10 February 2025, the Chhattisgarh High Court in Gorakhnath Sharma v. State of Chhattisgarh[1] acquitted a man whose wife died from the injuries he had inflicted on her through forced sexual violence. She had identified him by name in a dying declaration made in front of a magistrate. The trial court had found him guilty, but the High Court acquitted him because the two of them were husband and wife. This tells us everything we need to know about the problems with Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita 2023. No law review article, no matter how well written, could make the point more clearly than that single courtroom outcome did.
This piece looks at how a rule that came straight out of seventeenth-century English common law has somehow made it through India’s biggest rewrite of criminal law in living memory, completely intact. It assesses how this exception entered Indian law, looks at the petitions currently before the Supreme Court, considers the private member’s Bill that MP Shashi Tharoor placed before the Lok Sabha in December 2025, and lays out the case for why the Constitution requires this exception to go, drawing on the Supreme Court’s own past judgments on privacy, dignity, and equal treatment. The piece also looks at a problem within Section 67 of the BNS which quietly accepts that a husband can rape his wife, while giving it a much lower punishment than rape under Section 63. That gap is not just strange but deeply revealing.
I. Introduction
The Bharatiya Nyaya Sanhita 2023 (‘BNS’) came into effect on 1 July 2024, taking the place of the Indian Penal Code 1860 (‘IPC’). The government said it was a modern, home-grown restatement of Indian criminal law, freed from its colonial past. Exception 2 to Section 63 of the BNS says, in plain terms, that when a man has sexual intercourse or commits sexual acts with his own wife, as long as she is eighteen or older, that is not rape.[2] The wording is almost word-for-word what the old colonial-era IPC used to say. The only real change is that the minimum age for a wife has been moved up from fifteen to eighteen. Everything else was carried across without debate, without any committee recommending it, and despite the Justice Verma Committee having told Parliament, more than ten years ago, that this provision should simply be removed.[3]
II. A Fiction That Survived Everything: The Statutory History
The man most responsible for planting this idea in law was Sir Matthew Hale, Chief Justice of England, writing in the seventeenth century. He said that a husband could not be guilty of raping his wife because she had, by marrying him, given herself to him in that way, and that this was a consent she could not take back.[4] He did not cite any case law for this. He did not refer to any earlier judgment. He simply stated it as though it were an obvious truth in a legal text he was writing, and remarkably, that was enough for lawyers and courts to accept it without much pushback for nearly three hundred years.
This exception entered into Indian law through the IPC 1860, as Exception 2 to Section 375, with a minimum wife-age of fifteen, a number that said more about how colonial lawmakers felt about child marriage than about any genuine wish to protect women. When the Criminal Law (Amendment) Act 2013[5] was brought in following the horrifying gang rape in Delhi in 2012, the Justice Verma Committee had already said very clearly that the exception should go. Their view was that there was simply no good reason why a married woman should have less protection against sexual violence than any other woman. The 2013 reforms did push the wife-age threshold up to eighteen.[6] But that was it. The exception itself stayed, untouched.
Then came the BNS. The government told Parliament that this was not just a renaming exercise, but a real transformation of the law, something truly Indian and suited to the present day. The Home Minister called it a transformation, not a translation. And yet, the marital rape exception sailed through without any real scrutiny. It is now Exception 2 to Section 63.[7] The colonial-era provision has been given a new number and dressed in new language. Its meaning has not changed at all.
III. Gorakhnath Sharma: When the Law Acquits a Man Who Killed His Wife
No theoretical argument about this exception hits as hard as the facts of Gorakhnath Sharma v. State of Chhattisgarh.[8] The facts are worth stating simply and honestly. A husband used force against his wife in a violent sexual act. The injuries he caused were serious enough to tear through her rectal wall in two places. She developed a life-threatening infection, lost a great deal of blood, and eventually died. Before she died, she told an Executive Magistrate exactly what had happened and who was responsible. The post-mortem confirmed the cause of death as peritonitis from the rectal injury. The trial court found the husband guilty under Sections 376, 377, and 304 of the IPC and sent him to prison for ten years.
The Chhattisgarh High Court then overturned that conviction. Justice Narendra Kumar Vyas took the view that because the man was the woman’s husband, and because the marital rape exception under the IPC covered all sexual acts, including those under Section 377 dealing with unnatural offences, there was no criminal liability to speak of. The Court stretched the marital rape exception to cover Section 377, even though Section 377 itself contained no such exception anywhere in its text. The Court also found the dying declaration to be inadequately supported, despite the post-mortem having directly confirmed what she had said.[9]
Legal scholars have not been kind to this judgment. Jindal Global Law School described the ruling as one marked by serious error and legal wrongness, pointing out that the trial court had relied on solid supporting evidence that the High Court simply chose not to deal with.[10] AIDWA came out with a formal statement of condemnation, noting that the Supreme Court had never read a marital exception into Section 377, and that the High Court had gone well beyond what the law allows in extending the immunity to unnatural offences.[11] What really matters about this judgment for the purpose of this piece is not just the result, though that result is deeply troubling, but what it shows about how far the exception is being stretched. A provision that is, on its face, limited to rape under Section 375 is now being used by courts to protect husbands from charges under sections that carry no such exception at all. In practice, the protection is growing wider than it was ever written to be.
IV. The Constitutional Case: What the Supreme Court’s Own Jurisprudence Demands
1. Article 14: The Classification That Has No Rational Basis
Article 14 of the Constitution of India 1950 says that everyone is equal before the law.[12] A law is allowed to treat different groups differently only when there is a real and meaningful distinction between them. The purpose of rape law is to protect women from sexual violence that happens without their agreement. Exception 2 draws a line based on whether a woman is married. If the woman is living with her husband, the law steps back. Every other woman keeps that protection. The only thing separating these two groups is a marriage certificate. But a marriage certificate has nothing to do with whether a woman has agreed to something. It does not change what was done to her, how badly it has hurt her, or how blameworthy the person who did it is. There is no logical connection between being someone’s wife and losing the right to say no. The classification fails Article 14 at its most basic level.
2. Article 21: Bodily Integrity as a Fundamental Right
The most important constitutional judgment on this question in recent times is the Supreme Court’s nine-judge bench ruling in Justice K.S. Puttaswamy (Retd.) v. Union of India.[13] Every single judge on that bench agreed that the right to privacy, which includes the right to control what happens to one’s own body, to make personal choices, and to live with a degree of self-determination, is a fundamental right protected under Article 21. The right to decide what happens to your body is not a minor or secondary freedom. It sits at the very heart of what it means to be a free person in a constitutional democracy.
Once you accept that principle, Exception 2 becomes very hard to justify from a constitutional point of view. What it tells a married woman is that she has no right to decide what happens to her own body when it comes to her husband. Her saying no means nothing in law. That is not a restriction on a fundamental right. It is the complete removal of that right within a marriage.
The judgments that came after Puttaswamy push the argument further. In Navtej Singh Johar v. Union of India,[14] the Court put consent right at the centre of sexual freedom under the Constitution. It said that the right to say yes and the right to say no are two sides of the same coin. In Joseph Shine v. Union of India,[15] the Court struck down the adultery law, holding that treating a wife as something her husband owns sexually cannot be reconciled with Articles 14, 15, and 21. The connection to Exception 2 is hard to miss. Both the adultery provision that was struck down and Exception 2 rest on the same assumption: that when a woman gets married, her sexual choices pass to her husband. The Court found that assumption unconstitutional in the context of adultery. It is genuinely difficult to see why the same reasoning does not apply here.
3. The Government’s Defence and Why It Does Not Hold
Before the Supreme Court, the Central Government has taken the position that making non-consensual sex within marriage a crime could cause serious harm to the relationship between husband and wife and could shake the foundations of marriage as an institution.[16] The government has also raised the concern that such a law could be misused. The accusations made within the home would be hard to verify and might get weaponised during disputes between couples going through separation or divorce.[17]
The claim that removing this exception would damage the institution of marriage has been tested in real life, and it has not held up. The United Kingdom removed the marital rape immunity in R v. R[18] in 1991, with the House of Lords deciding that the idea of irrevocable consent given through marriage could no longer be treated as part of English law. After that change, marriage as an institution in Britain did not fall apart. South Africa, Ireland, Nepal, Canada, and well over a hundred other countries have all criminalised marital rape. Not one of them saw the institution of marriage collapse as a result. What changes in those countries is simply that women gain the same legal protection that every other person there already has.
The misuse argument is one that courts have heard before, particularly in challenges to Section 498A of the IPC, and it has never been accepted as a reason to keep a provision that cannot pass constitutional scrutiny. When the Supreme Court faced similar concerns about overreach in Arnesh Kumar v. State of Bihar,[19] it dealt with those concerns by putting safeguards around procedure rather than by watering down the offence itself. The same approach is available here. The possibility that some people might file false complaints is not a good enough reason to leave an entire group of women without the protection of the law.
V. The Section 67 Anomaly: Parliament’s Own Concession
There is one part of the BNS that does not get nearly enough attention, but which quietly pulls the rug out from under any principled defence of Exception 2. Section 67 of the BNS creates a specific offence: a husband who has sex with his wife while they are under judicial separation can be sent to prison for two to seven years.[20] In Section 67, Parliament has openly recognised that a husband can rape his wife. The idea of spousal rape is already in the BNS. Parliament looked at it, gave it a name, and chose to punish it, but only in one specific situation. The only husband who still walks free under Exception 2 is the one who is still living with his wife.
This creates two serious problems. The first is about the law being consistent with itself. The government cannot stand before the Supreme Court and argue that making marital rape a crime would harm the institution of marriage, when the very law it is defending already makes marital rape a crime, just not in all cases.
The second problem is about the punishment. Rape under Section 63 of the BNS, punishable under Section 64, carries a minimum sentence of ten years. But spousal rape during separation under Section 67 carries a minimum of just two years.[21] AIDWA has challenged this gap before the Supreme Court, arguing that by setting different punishments, Parliament has written into law the idea that raping a wife is inherently less serious than raping anyone else.[22] Tested against Article 14’s requirement that a classification must have a rational basis, this sentencing gap is very hard to defend. The act is the same. The absence of consent is the same. The harm done to the woman is the same. The only thing that changes is the piece of paper that links the attacker to the victim. That alone cannot justify a fivefold difference in the minimum punishment. The sentencing structure, much like the exception itself, does not hold up to constitutional examination.
VI. The 2025 Legislative and Judicial Landscape
There is a group of petitions before the Supreme Court challenging Exception 2 that were brought together from the Delhi High Court’s split ruling in 2022,[23] the Karnataka High Court’s decision in Hrishikesh Sahoo v. State of Karnataka, where the court called the exception regressive and continued the trial of the husband for rape[24] , and petitions filed directly under Article 32. Hearings before a bench led by the then-Chief Justice D.Y. Chandrachud, along with Justices J.B. Pardiwala and Manoj Misra, had moved along well through October 2024, before being paused when the Chief Justice retired. That pause was not a small thing. The case had built real momentum, and the change in the bench means that some arguments may need to be gone over again. As of April 2026, the case is still before a reconstituted bench and no date has been set for a final verdict.[25]
On 5 December 2025, Congress MP Shashi Tharoor brought a private member’s Bill before the Lok Sabha. It sought to remove Exception 2 from the Bharatiya Nyaya Sanhita and to reframe Indian rape law around a standard of active agreement, what he described as moving from “no means no” to “only yes means yes.”[26] The Bill shifts where the legal weight falls: instead of asking whether a woman resisted or refused, it would require that consent be given clearly, freely, and with full awareness. Realistically, this Bill is unlikely to become law in its current shape, as private member’s Bills in India almost never do. Parliament does not have the time, the government has shown no interest in taking this up, and the ruling side has not signalled any wish to engage with the question through legislation. But the fact that Tharoor introduced this Bill matters for reasons that go beyond the immediate odds of its passage. For one thing, it shows that the political conversation has genuinely shifted. A sitting MP has been willing to put his name publicly to this reform, without waiting for a committee to recommend it or a Law Commission to endorse it first. That takes a certain kind of willingness to stand in front of criticism. For another, it changes the context in which the Supreme Court is deliberating. The legislature has now been openly invited to act on this issue. It has not responded. That is a different situation from one where Parliament has simply been silent, and courts have long drawn meaning from deliberate inaction in the face of a clear legislative proposal. When Parliament declines to act even after a Bill has been placed before it, a constitutional court looking at the same question is working in a more pointed setting, one that arguably places a greater responsibility on the Court to step in.
The numbers from NFHS-5 bring a statistical reality to this debate that is difficult to set aside. According to that survey data, 83% of women who said they had experienced sexual violence pointed to their current husband as the person responsible.[27] That figure reframes the whole debate in a very direct way. Those who oppose criminalising marital rape often talk about the risk that the law might be used falsely against innocent men. But look at who Exception 2 actually shields in practice. It is not protecting some small or unlikely group from rare or imaginary accusations. It is protecting the person that a woman is, statistically speaking, most likely to be afraid of inside her own home. The exception does not sit at the edge of the law, catching unusual cases. It sits at the very centre, shielding the most common perpetrator of sexual violence against women from any criminal accountability whatsoever.
VII. Conclusion: A Political Problem in Legal Clothing
In the Chhattisgarh case, a woman died and told the authorities who had done this to her. The medical evidence backed up every word of what she said. A trial court had already found the man guilty. And then a High Court set him free, simply because he happened to be her husband. The law, honestly applied, produced that result. Nobody made a mistake in Gorakhnath Sharma; the court followed the law faithfully. The problem is that the law itself should never have been written the way it was.
Making the case against Exception 2 to Section 63 of the BNS does not need any clever or unusual reading of the Constitution. The argument follows naturally from what the Supreme Court has already said in Puttaswamy, Navtej Singh Johar, and Joseph Shine. A provision that strips married women of the legal protection of their own body cannot get past the Article 14 rational nexus test. It cannot be squared with the fundamental right to privacy. And it stands in flat contradiction with the Court’s own finding that treating a wife as something her husband owns sexually is not constitutional.
What keeps Exception 2 alive is not a legal argument but political inertia, the weight of repeated decisions by successive governments and Parliaments to simply leave things as they are, propped up by an affidavit that defends the institution of marriage against a danger that well over a hundred countries have shown, through actual experience, simply does not exist. The path forward is not complicated. Delete Exception 2. Bring Section 67 in line with Section 63 and Section 64 so that the punishment reflects the same gravity. Make active and willing agreement the legal standard for consent. None of this needs a constitutional amendment. It needs a legislature that is willing to look honestly at what the law is actually doing, which is letting men who rape their wives to death walk free, and conclude that this outcome is not something a democratic republic should be comfortable with.
The Supreme Court may settle this before Parliament finds the courage to. If it does, it will be putting right a contradiction that the law has carried within itself for far too long, clearing out a legal fiction that was never constitutionally sound and that the Court’s own reasoning has already moved past. If the Court sends it back to Parliament, the question lands where it has been gathering dust for more than a decade: in the gap between what the Constitution actually demands and what elected representatives have been willing to deliver. Either way, Exception 2 looks like it is running out of time. The only thing still uncertain is how many more cases like Gorakhnath Sharma will have to happen before it is finally gone.
References
[1] Gorakhnath Sharma v. State of Chhattisgarh 2025 SCC OnLine Chh 2287 (Chhattisgarh High Court, 10 February 2025, Narendra Kumar Vyas J).
[2] Bharatiya Nyaya Sanhita 2023 (India), s 63, Exception 2.
[3] Justice J.S. Verma, Justice Leila Seth, and Gopal Subramanium, Report of the Committee on Amendments to Criminal Law (January 2013) 111-116 (recommending deletion of the marital rape exception).
[4] Matthew Hale, Historia Placitorum Coronae (1736) vol 1, 629, as cited in R v. R [1991] UKHL 12.
[5] Criminal Law (Amendment) Act 2013 (India): raised wife-age threshold in Exception 2 to Section 375 IPC from 15 to 18 years.
[6] Justice Verma Committee Report (n 3) 111.
[7] Bharatiya Nyaya Sanhita 2023 (India), s 63: exception carried forward from IPC 1860, s 375, Exception 2.
[8] ibid (n 1).
[9] SCC Online (n 1); The Wire, ‘Chhattisgarh HC Acquits Man Accused of Sexually Assaulting Wife to Death’ (The Wire, 12 February 2025) <https://m.thewire.in/article/law/chhattisgarh-hc-acquits-husband-of-rape-unnatural-offence-charges-despite-wifes-death> accessed 14 April 2026.
[10] Deeksha Goswami and Parth Shrivastava, ‘The Chhattisgarh HC Marital Rape Judgement Has Perversity and Illegality Writ Large’ (Jindal Global Law School, February 2025) <https://jgu.edu.in/jgls/news/the-chattisgarh-hc-marital-rape-judgement-has-perversity-and-illegality-writ-large> accessed 14 April 2026.
[11] AIDWA, ‘AIDWA Condemns Chhattisgarh High Court’s Acquittal in Marital Rape Case’ (People’s Democracy, 9 March 2025) <https://peoplesdemocracy.in/2025/0309_pd/aidwa-condemns-chhattisgarh-high-courts-acquittal-marital-rape-case> accessed 14 April 2026.
[12] Constitution of India 1950, art 14 (equality before the law and equal protection of the laws).
[13] Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1 (nine-judge constitutional bench: right to privacy as a fundamental right under art 21).
[14] Navtej Singh Johar v. Union of India (2018) 10 SCC 1.
[15] Joseph Shine v. Union of India (2019) 3 SCC 39.
[16] Union of India, Affidavit filed before the Supreme Court in the batch of petitions challenging the marital rape exception (3 October 2024), as reported in The Tribune (17 October 2024) <https://www.tribuneindia.com/news/india/sc-commences-hearing-on-petitions-seeking-to-criminalise-marital-rape-in-india> accessed 14 April 2026.
[17] ibid.
[18] R v. R [1991] UKHL 12, [1992] 1 AC 599 (House of Lords).
[19] Arnesh Kumar v. State of Bihar (2014) 8 SCC 273.
[20] Bharatiya Nyaya Sanhita 2023 (India), s 67.
[21] ibid; cf Bharatiya Nyaya Sanhita 2023 (India), s 64.
[22] Supreme Court Observer, ‘Challenges to the Marital Rape Exception – Day 1’ (Supreme Court Observer, 17 October 2024) <https://www.scobserver.in/reports/challenges-to-the-marital-rape-exception-day-1> accessed 14 April 2026.
[23] RIT Foundation v. Union of India WP (C) 284/2015 (Delhi High Court, Split Verdict, 11 May 2022) – Justice Rajiv Shakdher (for criminalisation) and Justice C. Hari Shankar (against).
[24] Hrishikesh Sahoo v. State of Karnataka (Karnataka High Court) – court declined to quash FIR against husband for marital rape; characterised Exception 2 as regressive.
[25] 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 14 April 2026.
[26] Herald Goa, ‘Shashi Tharoor Introduces Bill to Criminalise Marital Rape, Calls for Shift to “Only Yes Means Yes”‘ (Herald Goa, 6 December 2025) <https://www.heraldgoa.in/globe-nation/shashi-tharoor-introduces-bill-to-criminalise-marital-rape-calls-for-shift-to-only-yes-means-yes/456199/> accessed 14 April 2026.
[27] Ministry of Health and Family Welfare, National Family Health Survey-5 (NFHS-5) 2019–21 (Government of India, 2022) – Table 15.5 (perpetrators of sexual violence against ever-married women).
