Marital Rape Exception in India: Is It Unconstitutional?

Abstract

Marital rape is a serious issue of law in India as the Indian Penal Code does not criminalize the rape of a wife by her husband. This presents a serious conflict with the right to life and liberty of the wife. The paper attempts to analyze the constitutionality of the marital rape exception by examining the State’s obligation under Articles 14 and 21 of the Constitution.

The article argues that the State fails both in its negative and positive obligations under the Constitution by failing to recognize the right of a married woman to equal protection of laws under Article 14 and by failing to protect the right of married women to dignity and bodily integrity under Article 21.

By using a doctrinal research methodology, the article analyzes the Constitution, statutes, case laws, and reports of the Law Commission to reach its conclusion. The paper argues that constitutional morality and the obligation of the State require that the marital rape exception be removed from the law.

The paper concludes that the removal of marital rape exception is required to uphold the constitutional rights of equality and bodily autonomy of the wife.

Introduction

Marriage is commonly imagined as a zone of intimacy and trust, yet for many women it is also a site of sexual coercion that the criminal law declines to name.

Exception 2 to section 63 of the Bharatiya Nyaya Sanhita 2023 (BNS) provides 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.¹ The provision reproduces, with a changed age threshold, the corresponding exception to section 375 of the Indian Penal Code 1860 (IPC).²

In substance, it makes a husband’s liability for the gravest sexual offence turn not on the absence of his wife’s consent but on the existence of the marriage.

The immunity has an English pedigree. In the seventeenth century Sir Matthew Hale wrote that a husband cannot be guilty of rape upon his lawful wife, because by the matrimonial contract the wife is taken to have given herself to her husband in this respect, and cannot retract that consent.³

The idea travelled to India through colonial codification and survived here long after it was abandoned in its country of origin. The House of Lords rejected it in 1991,⁴ and the European Court of Human Rights held that this change reflected a civilised conception of marriage and the Convention’s respect for human dignity and freedom.⁵

India now stands at an unusual constitutional moment. The Delhi High Court delivered a split verdict on the validity of the exception in 2022,⁶ the Karnataka High Court allowed a rape charge against a husband to proceed,⁷ and the Supreme Court, before which the challenges are pending, directed on 9 September 2026 that the batch of petitions be listed for final hearing.⁸

The question is therefore live and unresolved. This article asks whether a rule that conclusively presumes a wife’s consent can be reconciled with the constitutional guarantees of equality, dignity and personal liberty.

1. Research Problem / Research Question

The central problem is the survival of a statutory classification that affords a married woman aged eighteen or above less protection against rape than any other woman.

The Supreme Court has held that bodily integrity and decisional autonomy form part of the right to life and personal liberty,⁹ and it has read down the exception in respect of wives below eighteen.¹⁰

Even so, Parliament retained the exception for adult wives when it enacted the BNS, as it had left it untouched in the 2013 reforms despite the contrary recommendation of the Justice Verma Committee.¹¹

The article addresses three questions:

Is the marital exception to rape consistent with Articles 14, 15 and 21 of the Constitution?¹²
Do the existing civil and criminal remedies adequately protect a married woman against non-consensual sexual intercourse by her husband?
What reform, legislative or judicial, would best reconcile marital status with the principle of consent?

2. Objectives of the Study

The study pursues the following objectives:

to trace the historical and doctrinal origins of the marital rape exception;
to evaluate the justifications advanced for retaining it;
to analyse the relevant statutory provisions and the leading judicial decisions; and
to suggest reforms that align the law of rape with the principle of consent.

3. Research Methodology

The study is doctrinal. It relies on primary sources, namely the Constitution, the BNS, the repealed IPC, the Protection of Women from Domestic Violence Act 2005 and the judgments of the Supreme Court and the High Courts, and on secondary sources such as the reports of the Law Commission and the Justice Verma Committee.

The method is analytical and critical: the legal rule is examined for coherence with constitutional principle and judicial precedent.

No empirical fieldwork was undertaken; survey data is used only to indicate the scale of the problem.¹³

The law is stated as it stood on 6 October 2026.

Main Discussion and Legal Analysis

The exception rests on two historical ideas. The first is implied and irrevocable consent: marriage is treated as a contract by which the wife confers perpetual consent to sexual relations. The second is coverture, under which a married woman’s legal personality was merged into her husband’s, so that she could not be wronged by him in a way that depended on her independent will. Both ideas treat the wife’s consent as exhausted at the moment of marriage. Neither is compatible with consent as the law understands it elsewhere. Section 63 BNS describes consent as an unequivocal, voluntary agreement, communicated by words, gestures or any form of verbal or non-verbal communication, to the specific sexual act.14 The exception makes the presence or absence of that agreement legally irrelevant for one class of woman alone.

The point is not peculiar to Indian law. The House of Lords in R v R described the fiction of irrevocable consent as anachronistic and offensive, and declared that a rapist remains a rapist whatever his relationship to the victim.15 Nepal’s Supreme Court reached a similar conclusion in 2002, holding that the exemption could not stand alongside the equality of spouses, and Nepal thereafter legislated against marital rape.16 The CEDAW Committee has likewise urged states to define sexual offences by the lack of free consent and not to exempt marriage.17

The exception is also internally inconsistent with how the criminal law treats marriage in every other respect. A husband who assaults, confines or intimidates his wife commits the ordinary offences of hurt, wrongful confinement or criminal intimidation; marriage affords him no defence. Only sexual violence is exempted. This shows that the exception does not protect marital privacy as such, for privacy is not invoked to shield other violence within the home. What it protects is the husband’s presumed entitlement, and that is precisely the proprietary conception of marriage which the law has otherwise abandoned.

B. Constitutional Analysis

Article 14

A classification must rest on an intelligible differentia and bear a rational nexus to the object of the law. The object of the law of rape is to protect bodily integrity and sexual autonomy. A woman’s marital status has no bearing on the harm caused by a non-consensual sexual act, so the classification between married and unmarried women does not advance that object. Shakdher J accepted this reasoning and would have struck the exception down.18 Hari Shankar J disagreed, holding that marriage creates a legitimate expectation of conjugal relations, that the differentia is intelligible, and that the husband’s conduct, though wrongful, is not rape and may be dealt with under other provisions.19 The difficulty with the latter view is that an expectation of intimacy is a reason for caution in proving non-consent, not a reason to deny that non-consent can exist. In Independent Thought the Supreme Court had already held that the distinction between married and unmarried girls aged fifteen to eighteen was artificial and arbitrary.20

Manifest Arbitrariness

Independently of the classification test, the Supreme Court has held that a statutory provision may be struck down under Article 14 if it is manifestly arbitrary, that is, if it is capricious, irrational or without adequate determining principle.21 A rule that denies the criminal law’s protection to a woman solely because she is married, and that does so without regard to whether she consented, fits that description. The rule cannot be defended by pointing to its antiquity, because the Court has repeatedly held that a provision which was acceptable in its time may become unconstitutional as constitutional understanding evolves.

Article 21

The Supreme Court has recognised that reproductive choice includes the right to abstain from sexual activity,22 that even a woman of easy virtue is entitled to privacy and no one may violate it at will,23 and that privacy, dignity and bodily integrity are intrinsic to liberty.24 In Joseph Shine the Court rejected the notion that marriage makes a husband the master of his wife’s sexuality.25 The marital exception sits uneasily with each of these holdings, because it withdraws the protection of the criminal law from the one relationship in which a woman is most exposed and least able to leave.

Article 15(1)

Although the exception is framed in neutral terms, it operates only against women, and only because they are wives. It thereby imports into the criminal law a stereotype of the wife as a perpetually available partner, which the equality guarantee is meant to dismantle.

C. The Justifications for Retention

Four justifications are commonly offered.

Preservation of the institution of marriage: This argument mistakes the object of protection: an institution that depends on the legal immunity of sexual coercion is not strengthened by that immunity.
Risk of misuse and difficulty of proof: Misuse is an argument for careful investigation and trial, not for denying the existence of the wrong, and evidentiary difficulty is a feature of every rape prosecution, not of marital cases alone.
Availability of other remedies: The Union has defended the exception on the footing that the domestic violence and cruelty provisions already protect wives,26 a claim examined in Part 5.
Institutional considerations: Criminal policy is for Parliament. Yet the Union’s position is that the exception should remain until the Court determines its validity,27 and the petitioners rightly respond that striking it down creates no new offence. Rape is already defined and punished, and removing the exception merely removes an immunity.

The scale of the problem makes these justifications harder to sustain. Official survey data show that a significant proportion of ever-married women report sexual violence by their husbands, and the figure is widely regarded as an understatement because of the stigma attached to disclosure.28

Relevant Statutory and Judicial Analysis

A. The Statutory Framework

A man who commits rape under section 63 BNS faces rigorous imprisonment of not less than ten years, which may extend to imprisonment for life, together with a fine.29 A husband is excluded from this liability when his wife is eighteen or above. The only provision addressing a husband’s sexual conduct towards an adult wife is section 67 BNS, which punishes sexual intercourse with a wife living separately, whether under a decree or otherwise, without her consent, with imprisonment of between two and seven years.30

This produces an anomaly. A wife is protected, though only to a lesser degree, if she has left the marriage, yet she has no comparable protection while she remains within it. The lower sentence also signals that the legislature regards the offence as less grave than rape, though the violation is identical.

Other Legal Remedies

Other remedies are indirect. Cruelty by a husband is an offence under section 85 BNS, but cruelty requires wilful conduct of a kind likely to drive the woman to suicide or to cause grave injury or danger to life, limb or health, or harassment connected with unlawful demands for property.31

The Protection of Women from Domestic Violence Act 2005 is broader, as it includes within domestic violence any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman.32 Its remedies, however, are essentially civil: protection and residence orders and monetary relief, with criminal consequences only for breach of an order. Neither regime treats the act as rape, and neither carries the stigma, the investigative machinery or the punishment that the law attaches to that offence.

Law Reform Recommendations

Law reform bodies have not been consistent. The Law Commission’s 172nd Report declined to recommend deletion of the exception,33 and the Parliamentary Standing Committee that examined the 2012 Bill rejected criminalisation of marital rape on the ground that it might destabilise the institution of marriage. The Justice Verma Committee took the opposite view, recommending that the exception be removed and that marriage not be treated as a defence to rape.34

B. The Judicial Position

Judicial attitudes have moved from deference towards scrutiny. In the early 1980s the Andhra Pradesh High Court in T Sareetha held that a decree for restitution of conjugal rights, which could compel sexual relations, violated privacy and bodily integrity, but the Supreme Court in Saroj Rani upheld the remedy and treated the question as one of marital obligation.35

Three decades later, Independent Thought marked a turning point. The Court read down Exception 2 so that sexual intercourse with a wife below eighteen is rape, thereby harmonising the IPC with the Protection of Children from Sexual Offences Act 2012 and declining to let marriage override a child’s protection.36

Marital Rape and Abortion Law

In X v Principal Secretary the Supreme Court held, for the purposes of the Medical Termination of Pregnancy Rules, that the meaning of rape includes marital rape, so that a married woman who conceives as a result of non-consensual intercourse may seek termination on the same footing as other survivors. The Court stressed that the interpretation was confined to the Act and the Rules and did not decide the criminal law question.37

Divergent High Court Decisions

The High Courts have since diverged. The Delhi High Court’s split verdict in 2022 produced no binding outcome, although both judges certified that the matter involved substantial questions of law fit for the Supreme Court.38 The Karnataka High Court in Hrishikesh Sahoo held that the exception cannot confer absolute immunity on a husband and refused to quash a charge of rape against him; that decision was later stayed by the Supreme Court.39 The Chhattisgarh High Court, by contrast, applied the exception to protect a husband accused of non-consensual unnatural intercourse with his wife.40 The result is an uneven landscape in which the exposure of a husband to prosecution depends on the forum.

The Reasoning in Hrishikesh Sahoo

The reasoning in Hrishikesh Sahoo deserves attention. The High Court observed that rape remains rape irrespective of the identity of the offender, and that the exception could not be read as a licence permitting a husband to subject his wife to non-consensual sex. It treated the marital relationship as irrelevant to the question whether the offence was made out on the allegations, and it invited the legislature to reconsider the exception. Its significance lies less in any declaration of invalidity, which the Court did not make, than in its refusal to allow the exception to defeat a prosecution at the threshold.41

The Supreme Court’s Current Approach

The Supreme Court’s current approach is to hear the Karnataka matter alongside the petitions challenging the exception directly. It has indicated that it will examine whether a prosecution can be sustained while the exception remains in force and whether the exception is itself constitutionally valid.42

6. Findings / Observations

The analysis yields the following findings:

The exception derives from a discredited doctrine of irrevocable consent and coverture, which has been abandoned in England and in comparable jurisdictions.
The classification between married and unmarried women has no rational nexus with the object of the law of rape, and is hard to reconcile with Articles 14, 15 and 21 as interpreted in Puttaswamy, Independent Thought and Joseph Shine.
Existing remedies are partial. Section 67 BNS applies only to separated wives and carries a lower sentence, while the cruelty and domestic violence provisions neither name nor punish the act as rape.
The Supreme Court has narrowed the exception step by step, first by reading it down for wives below eighteen and then by recognising marital rape for the purposes of abortion law, without yet deciding its validity.
The High Courts are divided, so that the criminal exposure of a husband depends on where the case is heard. This itself offends legal certainty and equal protection.
The concerns of misuse and of harm to the institution of marriage are matters of procedure and policy, and do not justify the denial of equal protection of the law.

Reference

‘SC to Begin Final Hearing on Pleas Concerning Marital Rape’ The Pioneer (10 September 2026) <https://dailypioneer.com/news/slug-lite/sc-to-begin-final-hearing-on-pleas-concerning-marital-rape> accessed 6 October 2026.

Conclusion and Suggestions

A conclusive presumption of consent cannot coexist with a legal order built on dignity and autonomy. The marital rape exception treats a woman’s agreement as something she surrenders on marriage, and it does so in the one setting where coercion is hardest to escape and least likely to be reported. The exception is a legacy of a proprietary view of marriage, and the Supreme Court’s own decisions on privacy, equality and bodily integrity have left it without a principled foundation. Recognising this does not create a new crime or convert every marital dispute into a prosecution. It restores to married women a protection that every other woman already enjoys, subject to the same standards of proof.

The choice between a judicial and a legislative route is a question of institutional design and not of principle. Parliament is the more suitable body to supply a comprehensive scheme, but the Court is not barred from striking down a provision that violates fundamental rights, and its decision in Independent Thought shows that it will do so where the constitutional injury is clear. Because striking down the exception would operate prospectively on future conduct and would create no new offence, the objection that the Court is making criminal law should carry little weight.

The Following Suggestions Are Offered

Exception 2 to section 63 BNS should be deleted by Parliament or, failing that, declared unconstitutional by the Supreme Court, in line with the recommendation of the Justice Verma Committee.
Section 67 BNS should be repealed or reconstructed, so that no husband enjoys a lighter punishment for rape merely because the victim is his wife.
Marital rape cases should be governed by the ordinary rules on proof, with guidelines for investigators and prosecutors to ensure careful, sensitive and evidence-based inquiry that addresses misuse without denying genuine complaints.
The machinery under the Protection of Women from Domestic Violence Act 2005, including protection officers, shelter homes and legal aid, should be strengthened so that women who report sexual violence are able to leave an abusive household safely.
Judicial academies and the police should be trained on consent within marriage, and public awareness campaigns should make clear that marriage does not amount to perpetual consent.

Bibliography

Table of Legislation

Bharatiya Nyaya Sanhita 2023
Constitution of India 1950
Criminal Law (Amendment) Act 2013
Indian Penal Code 1860 (repealed)
Protection of Women from Domestic Violence Act 2005

Table of Cases

Forum for Women, Law and Development v HMG Nepal (Supreme Court of Nepal, 2002)
Gorakhnath Sharma v State of Chhattisgarh (Chhattisgarh HC, February 2025)
Hrishikesh Sahoo v State of Karnataka (Karnataka HC, 23 March 2022)
Independent Thought v Union of India (2017) 10 SCC 800
Joseph Shine v Union of India (2019) 3 SCC 39
Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1
R v R [1992] 1 AC 599 (HL)
RIT Foundation v Union of India 2022 SCC OnLine Del 1404
Saroj Rani v Sudarshan Kumar Chadha (1984) 4 SCC 90
Shayara Bano v Union of India (2017) 9 SCC 1
State of Maharashtra v Madhukar Narayan Mardikar (1991) 1 SCC 57
Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1
SW v United Kingdom (1995) 21 EHRR 363
T Sareetha v T Venkata Subbaiah AIR 1983 AP 356
X v Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi 2022 SCC OnLine SC 1321

Secondary Sources

Hale M, The History of the Pleas of the Crown, vol 1 (Sollom Emlyn 1736)
International Institute for Population Sciences and ICF, National Family Health Survey (NFHS-5), 2019–21: India (Ministry of Health and Family Welfare 2021)
Justice JS Verma Committee, Report of the Committee on Amendments to Criminal Law (23 January 2013)
Law Commission of India, 172nd Report on Review of Rape Laws (2000)
Parliamentary Standing Committee on Home Affairs, 167th Report on the Criminal Law (Amendment) Bill 2012 (2013)
UN Committee on the Elimination of Discrimination against Women, General Recommendation No 35 on Gender-Based Violence against Women, Updating General Recommendation No 19 (14 July 2017) UN Doc CEDAW/C/GC/35

News and Online Sources

‘Commencement of Marital Rape Hearing: Supreme Court’ Desi Kanoon <https://desikaanoon.in/?p=430533> accessed 6 October 2026
‘SC to Begin Final Hearing on Pleas Concerning Marital Rape’ The Pioneer (10 September 2026) <https://dailypioneer.com/news/slug-lite/sc-to-begin-final-hearing-on-pleasconcerning-marital-rape> accessed 6 October 2026
‘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-exceptionwhat-the-law-says-and-what-it-refuses-to-see/> accessed 6 October 2026

End-Notes:

Bharatiya Nyaya Sanhita 2023, s 63, exception 2.
Indian Penal Code 1860 (repealed), s 375, exception 2.
Matthew Hale, The History of the Pleas of the Crown, vol 1 (Sollom Emlyn 1736) 629.
R v R [1992] 1 AC 599 (HL).
SW v United Kingdom (1995) 21 EHRR 363.
RIT Foundation v Union of India 2022 SCC OnLine Del 1404.
Hrishikesh Sahoo v State of Karnataka (Karnataka HC, 23 March 2022).
‘SC to Begin Final Hearing on Pleas Concerning Marital Rape’ The Pioneer (10 September 2026), URL: https://dailypioneer.com/news/slug-lite/sc-to-begin-final-hearing-on-pleas-concerning-marital-rape (accessed 6 October 2026).
Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
Independent Thought v Union of India (2017) 10 SCC 800.
Justice KS Verma Committee, Report of the Committee on Amendments to Criminal Law (23 January 2013).
Constitution of India 1950, arts 14, 15 and 21.
International Institute for Population Sciences and ICF, National Family Health Survey (NFHS-5), 2019–21: India (Ministry of Health and Family Welfare 2021).
BNS (n 1) s 63, explanation 2.
R v R [1992] 1 AC 599 (HL).
Forum for Women, Law and Development v HMG Nepal (Supreme Court of Nepal, 2002).
UN Committee on the Elimination of Discrimination against Women, General Recommendation No 35 on Gender-Based Violence against Women, Updating General Recommendation No 19 (14 July 2017) UN Doc CEDAW/C/GC/35.
RIT Foundation (n 6) (Shakdher J).
RIT Foundation (n 6) (Hari Shankar J).
Independent Thought (n 10).
Shayara Bano v Union of India (2017) 9 SCC 1.
Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1.
State of Maharashtra v Madhukar Narayan Mardikar (1991) 1 SCC 57.
Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
Joseph Shine v Union of India (2019) 3 SCC 39.
‘The Marital Rape Exception: What the Law Says and What It Refuses to See’ Feminism in India (14 April 2026), URL: https://feminisminindia.com/2026/04/14/the-marital-rape-exception-what-the-law-says-and-what-it-refuses-tosee/ (accessed 6 October 2026).
‘Commencement of Marital Rape Hearing: Supreme Court’ Desi Kanoon, URL: https://desikaanoon.in/?p=430533 (accessed 6 October 2026).
International Institute for Population Sciences and ICF, National Family Health Survey (NFHS-5), 2019–21: India (Ministry of Health and Family Welfare 2021).
BNS (n 1) s 64(1).
BNS (n 1) s 67; cf Indian Penal Code 1860 (repealed), s 376B.
BNS (n 1) ss 85–86; cf Indian Penal Code 1860 (repealed), s 498A.
Protection of Women from Domestic Violence Act 2005, s 3, explanation I(ii).
Law Commission of India, 172nd Report on Review of Rape Laws (2000).
Parliamentary Standing Committee on Home Affairs, 167th Report on the Criminal Law (Amendment) Bill 2012 (2013); Criminal Law (Amendment) Act 2013.
T Sareetha v T Venkata Subbaiah AIR 1983 AP 356; Saroj Rani v Sudarshan Kumar Chadha (1984) 4 SCC 90.
Independent Thought (n 10).
X v Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi 2022 SCC OnLine SC 1321.
RIT Foundation v Union of India 2022 SCC OnLine Del 1404.
Hrishikesh Sahoo (n 7).
Gorakhnath Sharma v State of Chhattisgarh (Chhattisgarh HC, February 2025).
Hrishikesh Sahoo (n 7).

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