Marital Rape and the Bharatiya Nyaya Sanhita: Should the Criminal Law Exception Continue?

Abstract

Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023 (BNS), reproduces the historic marital rape exception that first appeared as Exception 2 to Section 375 of the Indian Penal Code, 1860 (IPC), by stipulating 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. While the Supreme Court in Independent Thought v. Union of India read down the earlier exception insofar as it applied to minor wives between fifteen and eighteen, the broader premise that marriage operates as a blanket defence to non?consensual sex with an adult wife continues in the BNS. The marital rape exception has attracted sustained criticism from domestic law reform bodies such as the Justice Verma Committee and the Law Commission of India, as well as from international human rights bodies including the CEDAW Committee, all of whom have urged its removal. This paper interrogates whether the replication of the marital rape exception in the BNS can be normatively and constitutionally justified and asks whether the criminal law exception should continue in its present form. It situates the debate in the context of evolving constitutional doctrine on bodily integrity and sexual autonomy, the split verdict of the Delhi High Court in RIT Foundation v. Union of India, and emerging comparative trends on criminalisation of marital rape. It concludes that the continued retention of the marital rape exception in Section 63 BNS is inconsistent with Articles 14, 15 and 21 of the Constitution, incompatible with India’s obligations under CEDAW and emerging international norms, and unsupported by any compelling public interest rationale. The paper argues that the exception should be abolished and proposes a set of doctrinal and legislative reforms to integrate non?consensual sexual acts within marriage into the general rape framework, while simultaneously addressing legitimate concerns about evidentiary burdens and misuse.

Introduction

The text examines the historical development, current legal position, constitutional validity, policy debates, and proposed reforms concerning the marital rape exception in India, particularly under the Bharatiya Nyaya Sanhita (BNS), 2023.

1. Historical evolution

The marital rape exception originated in colonial-era ideas that marriage created permanent or implied consent to sexual intercourse. Under the IPC, Exception 2 to Section 375 excluded sexual intercourse by a husband with his wife from the definition of rape, provided she was above the prescribed age.

The Supreme Court’s decision in Independent Thought v. Union of India changed this position for minor wives by holding that sexual intercourse with a wife below 18 constitutes rape, regardless of marriage. However, the Court did not decide whether the exception was constitutional in relation to adult wives. The BNS has retained the exception, now as Exception 2 to Section 63, with the age threshold of 18.

2. Position under the BNS

Section 63 BNS adopts a consent-based definition of rape and covers various circumstances in which consent is absent or invalid. However, Exception 2 excludes sexual intercourse by a husband with his adult wife from the offence of rape.

Section 67 creates a separate, less serious offence where a husband has non-consensual sexual intercourse with his wife while they are living separately. This creates three categories:

• Wife below 18: protected under the general rape provision.

• Separated wife: protected under Section 67, but with a lesser punishment.

• Adult cohabiting wife: excluded from rape protection because of the marital rape exception.

The text argues that this creates a hierarchy based on marital status rather than consent.

3. Constitutional debate

The constitutional validity of the exception was directly considered in RIT Foundation v. Union of India before the Delhi High Court, which produced a split judgment in 2022.

• Justice Rajiv Shakdher considered the exception unconstitutional, arguing that treating married and unmarried women differently lacked a rational connection with the purpose of rape law and violated constitutional guarantees including equality, non-discrimination, and dignity.

• Justice C. Hari Shankar upheld the exception, emphasizing legislative policy-making and arguing that the classification between marital and non-marital relationships could be constitutionally justified.

The issue has subsequently reached the Supreme Court, which, as described in the text, had not yet delivered a final decision as of mid-2026.

4. Research scope and methodology

The paper uses a doctrinal and normative legal research methodology. It examines:

• The BNS and earlier IPC provisions.

• Supreme Court and High Court decisions.

• Law Commission reports.

• The Justice Verma Committee Report.

• Constitutional principles under Articles 14, 15 and 21.

• International obligations, particularly CEDAW.

• Comparative developments in other countries.

The central questions concern whether the marital rape exception is compatible with consent, bodily autonomy, equality, dignity, privacy, and India's international human-rights obligations.

5. Law reform history

The 156th and 172nd Law Commission Reports did not recommend complete abolition of the marital rape exception. They were concerned that criminalisation could interfere excessively with marriage 

Conclusion

The replication of the marital rape exception in Section 63 BNS represents a regressive continuity from colonial criminal law and post?Independence statutory frameworks that treated marriage as a space of exceptional immunity from rape law. While the Supreme Court’s decision in Independent Thought has partially corrected this by removing immunity for child marital rape, the broader premise that adult wives living with their husbands cannot be raped in the eyes of criminal law persists and is now embedded in the new code. Doctrinal analysis grounded in consent, equality and dignity reveals that the marital rape exception is incompatible with the structure of modern rape law and fails constitutional scrutiny under Articles 14, 15 and 21. International bodies such as the CEDAW Committee and domestic law reform efforts led by the Justice Verma Committee have urged its removal, placing India at odds with global trends towards criminalising marital rape and protecting women from sexual violence in all spheres. On balance, there is no compelling justification for continuing the criminal law exception for marital rape in the BNS. Concerns about misuse and disruption of marital harmony can be addressed through carefully crafted elements of the offence, evidentiary safeguards and robust implementation, rather than categorical spousal immunity. The paper therefore concludes that the marital rape exception under Section 63 BNS should be abolished, either through legislative amendment or constitutional adjudication, and that Indian criminal law must unequivocally recognise non?consensual sexual acts within marriage as rape, thereby affirming that marriage is a partnership of equals, not a licence for sexual violence.

References

[1] [PDF] THE BHARATIYA NYAYA SANHITA, 2023 NO. 45 OF 2023 An Act to ... [2] Reassessing the Marital Rape Exception under the Bharatiya Nyaya ... - Rape, under Indian law, means sex without consent. But there is one significant exception. If the ma... [3] © 2026 JAAFR | Volume 4, Issue 4 April 2026 | ISSN: 2984-889X | JAAFR.ORG [4] Independent Thought vs Union Of India on 11 October, 2017 [5] [PDF] Winter Issue 2017 ILI Law Review Vol. II - MARITAL RAPE [6] Microsoft Word - FINAL REPORT 230113 (with signatures) [7] Independent Thought v. Union of India - Summary of case filed challenging Exception 2 to S.375 of the IPC which did not recognise marital ra... [8] Advance Unedited Version [9] Justice Verma Committee Report - PRS Legislative Research [10] Convention on the Elimination of All Forms of ... [11] CEDAW 58th session India 2014 [12] CEDAW 58th session India 2014 [13] [PDF] Supreme Court of India [14] Report Summary - PRS Legislative Research [15] Appeal filed in Supreme Court challenging Delhi HC\'s split ... - Appeal filed in Supreme Court challenging Delhi HC\'s split verdict on marital rape [16] Delhi HC delivers split verdict on criminalisation of marital rape - NEW DELHI: The Delhi High Court Wednesday delivered a split verdict on the issue of criminalisation ... [17] ??????? ???????? ?? ????? ????? ???? ?? ??????? ????? - Split Verdict on Criminalization of Marital Rape| Can a Husband be labelled as a rapist? [18] Marital Rape judgement: Delhi high court delivers split verdict on criminalisation of marital rape - Marital Rape Verdict: Exception 2 of Section 375 of the Indian Penal Code decriminalises marital rap... [19] Criminalisation of marital rape: Delhi HC verdict split, matter to be ... - The Delhi Court Bench hearing the plea on marital rape delivered a split verdict and the matter will... [20] Delhi HC Bench Delivers Split Verdict on Criminalising Marital Rape - While Justice Rajiv Shakdher held Exception 2 to Section 375 of the IPC as unconstitutional, Justice... [21] Supreme Court weighs marital rape exception. Why is it a legal flashpoi… - The Supreme Court is examining the legality of marital rape in India following conflicting high cour... [22] Marital rape in India – [23] [PDF] INDEPENDENT Thoughts Vs. UNION OF INDIA And The ... - JETIR.org [24] Harmonizing Child Protection Laws: Analysis of Independent ... - Harmonizing Child Protection Laws: Analysis of Independent Thought v. Union Of India [25] [PDF] Independent Thought vs. Union of India - IOSR Journal [26] Assumption That Wife Forced To Have Sex With Husband ... - Delivering a split verdict in pleas seeking crimina [27] Delhi HC\'s split verdict on Marital rape criminalisation challenged in SC - On May 11, a bench of Justice Rajiv Shakdher and Justice C. Hari Shankar expressed different opinion...

Copyright

Copyright © 2026 Harshita Dhawan, Sakshi , Kartik Rana, Sneha Srivastava, Shalini Pant. This is an open access article distributed under the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.