Published On: September 30th 2025
Authored By: Bipasha Sinha
BBDU Lucknow
ABSTRACT
The Marital Rape Exception in India which has been codified under Section 63, Exception 2 of BNS exempts the husband from prosecution for raping his wife provided she is of 18 years. This perpetuates archaic patriarchal norms of implied and irrevocable consent of the wife upon marriage and restricts her sexual autonomy and the right to withdraw her consent upon her will. This paper critically analyses how the Marital Rape Exception violates the fundamental rights of equality, dignity, expression and autonomy guaranteed under Article 14, 21 and 19(1)(a) of the Indian Constitution.
It traces the colonial roots of the marital rape exception and the post-independence stance, the stalled reforms and split verdict as seen in RIT Foundation v Union of India. Comparative insights of global jurisdictions have been drawn, such as UK, South Africa and Scandinavian countries that have long since criminalized marital rapes and international bodies like UN and CEDAW that strongly condemn marital rape. It examines the reluctance of Indian Legislation in abolishing the marital rape exception despite the recommendations by international bodies.
This article calls for statutory reforms and robust initiatives to dismantle the doctrine of marital rape exception. Lastly it concludes that Constitutional morality must prevail over social morality and a woman’s right to say no must remain absolute regardless of her marital status.
Introduction: Consent beyond wedding vows
“The ability to make choices within marriage and in every aspect concerning it is a facet of human liberty and dignity which the Constitution protects.”[1]
-Justice D.Y. Chandrachud
Marriage is a partnership and a union founded on trust, equality and mutual consent. The solemnization of marriage grants both parties certain legal rights and obligations which have been carefully constructed by the Indian Legislation except when it comes to sexual autonomy for women. Consent, as repeatedly held by the Apex Courts in several judgments, is the cornerstone of any sexual relationship and must be acquired every time before engaging in sexual intercourse. It is a fundamental expression of liberty and autonomy. Yet it gets diluted within the bounds of a marital relationship where the law presumes the consent of a wife to be implied at the time of marriage and that it extends to all subsequent sexual acts during the course of marriage. Consequently, it favours spousal entitlement of husband over equal autonomy.
BNS describes ‘woman’ as a “female human being of any age[2]”. This definition is both gender-specific and inclusive of age, leaving no ambiguity as to whom the law seeks to protect. Yet the marital rape exception showcases the failure of Indian Legislation in protecting the dignity of women. This begs the question what is rape and how is it different from marital rape? Rape can be defined as an act of a man engaging in sexual intercourse with a woman against her will, consent, or with consent obtained through coercion, fraud, misrepresentation or undue influence. Whereas Marital Rape is an act of non- consensual sexual intercourse by a husband with his wife within the bounds of legally recognized marriage. In India the former constitutes an offense, however the latter is an exception to the law.
Exception 2 of Section 63 of BNS [3]exempts the husband from prosecution for raping his wife provided she is of 18 years.
Marital Rape is not considered “rape” in India, owing to the outdated societal norm of implied spousal consent upon marriage. This not only goes against the fundamental right of equality, dignity and bodily autonomy enshrined in the Indian Constitution but also promotes gender-based subjugation. According to National Family Health Survey-5 ( 2019-21)[4], nearly 31.9% of married women reported having experienced spousal sexual assault and yet the law remains silent and offers them no recourse if the perpetrator is their husband.
Colonial relic: Historical Origin of Marital Rape Exception
Marital rape in India is a colonial legacy and derives its roots from the announcement of Sir Matthew Hale [5]who declared that a husband cannot be guilty of raping his lawful wife as her consent is given upon marriage. This was later codified in Section 375, Exception 2 of IPC. [6]Exception 2 to Section 375 of the Indian Penal Code declares that sexual intercourse by a man with his own wife does not amount to rape provided she is over 15 years of age, the husband is thus exempted from prosecution.
Split Verdicts and Stalled reforms : Post Independence stance on marital Rape
The Delhi High Court has been hearing arguments on marital rape exception since 2015. The need to remove the marital rape exception was rejected by the Law Commission of India in 2000,[7] while considering proposals to reform India’s laws on sexual violence. In 2012, the Justice JS Verma Committee [8]was tasked with proposing amendments to India’s rape laws, however the Committee’s suggestion to abolish marital rape was not acted upon.
In 2022 the two bench judges consisting of Justice Shakdher and Justice Hari Shankar delivered a split judgement on the case RIT Foundation v Union of India[9]. Justice Rajiv Shakdher struck down the exception as unconstitutional holding it to be a violation of Article 14, 19 and 21. He further deemed that any act of non-consensual sexual intercourse by husband with a wife under the age of 18, shall constitute as rape. However, Justice Hari Shankar maintained that the continuing legislative intent behind the marital rape exception is to protect the institution of marriage by distinguishing between non-consensual sexual acts within marriage and those outside of it.
BNS, Section 63 has mirrored the former IPC provision and while the age limit rose from 15 to 18 under BNS, it still preserved the core marital rape exception for wives.
Constitutional Critique : Denial of Autonomy, Dignity and Equality
The marital rape exception under Section 63, Exception 2 of BNS stands in conflict with the fundamental rights enshrined by the Indian Constitution, it denies the married women equal protection and violates their bodily autonomy and dignity.
Article 14 [10]guarantees equality before law and equal protection under law and yet this exception draws a clear distinction between married and unmarried women and denies the former protection from rape due to the sole reason of marital status. This distinction lacks rationality as marital status has no nexus with the objective of rape laws which is to protect integrity and sexual autonomy. Such an immunity is discriminatory and violates both formal and substantive equality.
Article 21 [11]which guarantees the right to life and liberty also mandates the right to dignity and bodily autonomy. By refusing to criminalize marital rape, married women are exempted from these rights and are subjected to state sanctioned sexual violence.
Article 19(1)(a) [12]which emphasizes the Right to freedom and expression, includes within its ambit, the right to speak against injustice and seek redressal. However, by failing to recognise marital rape as an offense, it silences the victims and deems their testimony non actionable.
Constitutional morality vs. Social Morality : Clash of Values
The Supreme Court in Navtej Singh Johar v Union of India (2018)[13] and Indian Young Lawyers Association v. State of Kerala (2018) [14]affirmed that Constitutional morality must prevail over social morality. Retaining marital rape exception highlights the triumph of persistent patriarchal social norms that prioritizes spousal entitlement over individual autonomy.
In essence the exception goes against the principles of constitutional morality that highlights the right of liberty, equality and dignity. Therefore, it must be abolished to preserve constitutional values guaranteed under the Indian Constitution.
Cross-Border Consent: A Global Jurisdictional Outlook
Marital rape has been recognised globally by international human rights jurisprudence as a form of gender-based violence that is a gross violation to the principle of equality and several jurisdictions including UK, South Africa and Scandinavian countries have criminalized it.
United Kingdom
United Kingdom criminalized marital rape in R v R [15]where the court held that marriage does not imply consent and characterized marital rape exception as an “common law fiction.”
Following this judgement the UK Parliament made amendments in the Sexual Offences Act, 2003 and eliminated any special status for spouses.
South Africa
Post-Apartheid South Africa explicitly criminalized marital rape through the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007. The Supreme Court in S v N [16]held that non-consensual sex within marriage is rape.
Scandinavian Countries
Scandinavian countries offer the most progressive models for addressing marital rape.
Sweden not only criminalized marital rape in 1965 but in 2018 introduced consent-based rape laws that puts emphasis on expressive consent and eliminated the concept of implied consent. Norway, Denmark and Finland have also criminalized marital rape.
United Nations and CEDAW Position
United Nations has taken a strong stance against marital rape. CEDAW General Recommendations No. 19 (1992) [17]has explicitly defined marital rape as a form of gender-based violence that constitutes discrimination against women.
UN Special Rapporteur on Violence Against Women [18]has long since criticized countries that provide immunity to spouses in the form of marital rape exception. Additionally, UN Human Rights Council’s Universal Periodic Review ( UPR) [19]has been pressing countries like India, Indonesia and Bangladesh to abolish marital rape exemptions.
The Road to Reform: Dismantling the Doctrine of Implied Spousal Consent
The non-compliance of Indian Legislation on criminalizing marital rape showcases the deeply rooted patriarchal assumption about women’s consent and role within the institution of marriage. This exception should be abolished to align with the Constitutional values and international human rights norms.
Necessary reforms must be made for changing legal and societal stance on marital rape.
A: Statutory Criminalization
Marital rape must be penalized and Exception 2 of Section 63 of BNS must be struck down and replaced with affirmative consent that can be revoked at any time, regardless of marital status.
B: Judicial Affirmation
Supreme Courts must be encouraged to take inspiration from international jurisprudence like that of UK and South Africa and strike down the marital law exception by invoking Article 14, 21 and 19(a) of the Indian Constitution.
C: Training and Sensitization
Trauma- informed, gender sensitive training should be mandated for law, enforcement, prosecutors and judges.
D: Public Awareness
National Awareness Campaigns must be launched promoting equality and preaching that consent is a vital essential in all relationships including marriage. Local Bodies and NGOs should be used for outreach in rural areas.
E: Victim Support System
Legal aid cells, crisis-centres, counselling services, toll-free helplines and safe shelter for survivors must be set up to provide confidentiality, witness protection and financial assistance.
F: Remedial Integration
The ambit of Protection of Women from Domestic Violence Act ( PWDVA) 2005 [20]should be expanded to include marital sexual violence and remedies like compensation and restraining orders must be offered to the victims.
G: Monitoring and Feedback
Independent Oversight Committees should be formed to monitor the quality of investigation, institutional accountability and efficiency of victim support cells.
Conclusion: Final Reflections and the Vision Ahead
Marital rape exception is not merely a legislative oversight but it underscores the triumph of deeply rooted patriarchal norms that prioritizes conjugal entitlement of a husband and gives him immunity for rape under the guise of “sanctity of marriage.” Whereas the sexual autonomy of the wife is restricted due to the assumption of implied consent upon marriage. Exception 2 of Section 63 of BNS which denies the married women protection against rape goes against the fundamental rights of equality, dignity, autonomy and expression as guaranteed under Article 14, 21 and 19(1)(a) of Indian Constitution respectively.
Rooted in the colonial era under the pronouncement of Sir Matthew Hale, the Marital Rape Exception has no place in a modern democracy like India. Several international jurisdictions like UK, South Africa, Scandinavian countries have long since criminalized marital rape and international bodies like UN and CEDAW strongly condemn marital rape and deem it to be a gender-based discrimination. Yet the recommendations made by these bodies to abolish marital rape exemption have been repeatedly ignored by Indian Legislation.
As rightfully quoted by Justice Shakdher
“Modern-day marriage is a relationship of equals. The woman by entering into matrimony does not subjugate or subordinate herself to her spouse or give irrevocable consent to sexual intercourse in all circumstances.”[21]
Reforms must be made to change the legal and societal myths surrounding marital rape. Marital rape must be criminalized, judiciary, law enforcement bodies and prosecutors should be subjected to trauma and gender sensitive training, nationwide campaigns must be launched to spread awareness among people, victim support cells must be set up and lastly oversight committees should be formed.
After 78 years of independence India is still following laws which discriminate between married and unmarried women when it comes to gruesome offences like rape. Constitutional morality must prevail over social morality hence marital rape exception should be abolished as marriage cannot be a licence to violate sexual autonomy and a woman’s right to say no must remain absolute regardless of her marital status.
References
Articles and Journals
- Parikshit S Chauhan, ‘“Licensed to Rape?”: The Critique of the Indian Penal Provision Indemnifying Marital Rape’ (2022) 2(2) Indian Journal of Integrated Research in Law 1
- Sri Kamal Baggi, ‘Marital Rape in India: An Analysis’ (2022–2023) 4(6) Indian Journal of Law and Legal Research
- Arushi Sharma and others, ‘Evolving Jurisprudence On Marital Rape: A Comparative Legal Study’ (2025) 5(2) Journal of Informatics Education and Research 4178
- N J Dsouza, ‘A Comparative Analysis of the Legal Status of Marital Rape’ (2023) 5(1) Indian Journal of Law & Legal Research 1
- P Jawa and J Saxena, ‘Impunity of Marital Rape: A Critical Analysis of Existing Laws and Regulations’ (2024) 7(5) International Journal of Law, Management & Humanities 1626
- B Gupta and M Gupta, ‘Marital Rape: Current Legal Framework in India and the Need for Change’ (2013) 1(1) Galgotias Journal of Legal Studies 16
- Sneha Kadyan and N Prabha Unnithan, ‘The Continuing Non-Criminalization of Marital Rape in India: A Critical Analysis’ (2025) 35(3) Women & Criminal Justice 205
- Debanjan Banerjee and TS Sathyanarayana Rao, ‘The Dark Shadow of Marital Rape: Need to Change the Narrative’ (2022) 4(1) Journal of Psychosexual Health
- Krina Patel, ‘The Gap in Marital Rape Law in India: Advocating for Criminalization and Social Change’ (2018–2019) 42 Fordham International Law Journal 1519
Books
- Aparna Singh and Rajeev Kumar, Unveiling the Legal Dynamics: Understanding Marital Rape – Marital Rape 101 (2024)
- Malavika Rajkotia, Intimacy Undone: Law of Marriage, Divorce and Family in India (Speaking Tiger Books, New Delhi 2021)
- Manish Dalal and Raj Kumar, Marital Rape: The Indian and Global Perspective (Shandilya Publications, New Delhi 2021)
- Hale M, The History of the Pleas of the Crown (E and R Nutt and R Gosling 1736).
[1] Joseph Shine v Union of India (2018) 2 SCC 189 [36] ( DY Chandrachud J)
[2] Bhartiya Nyaya Sanhita 2023, s 2(36)
[3] Bhartiya Nyaya Sanhita 2023, s 63 ( Exception 2)
[4] Ministry of Health and Family Welfare, National Health Survey ( NFHS-5), 2019-21 ( International Institute for Population Sciences 2021)
[5] Matthew Hale, The History of the Pleas of the Crown ( E and R Nutt and R Gosling 1736) vol 1, 629
[6] Indian Penal Code 1860, s 375 ( Exception 2)
[7] Law Commission of India, Review of Rape Laws ( 172nd Report, 2000) para [3.2]
[8] Justice J S Verma Committee, Report of the Committee on Amendments to Criminal Law (2013) para [79].
[9] RIT Foundation v Union of India 2022 SCC OnLine Del 1404.
[10] Constitution of India, art 14.
[11] Constitution of India, art 21.
[12] Constitution of India, art 19(1)(a)
[13] Navtej Singh Johar v Union of India (2018) 10 SCC 1.
[14] Indian Young Lawyers Association v State of Kerala (2019) 11 SCC 1.
[15] R v R [1991] UKHL 12, [1992] 1 AC 599.
[16] S v N [2008] ZASCA 30
[17] Committee on the Elimination of Discrimination against Women, ‘General Recommendation No 19: Violence against women’ (1992) UN Doc A/47/38
[18] Dubravka Šimonović, ‘Report of the Special Rapporteur on violence against women, its causes and consequences’ (6 May 2021) UN Doc A/HRC/47/26
[19] Human Rights Council, ‘Report of the Working Group on the Universal Periodic Review: India’ (4 April 2017) UN Doc A/HRC/34/8
[20] Protection of Women from Domestic Violence Act 2005
[21] RIT Foundation v Union of India 2022 SCC OnLine Del 1404 [163] (Shakdher J)
