Marital Rape – A crime or an exception?

Introduction –

Marriage has traditionally been regarded as a sacred institution built upon trust, companionship,
and mutual respect. Yet, beneath this idealised perception lies a deeply contested legal and moral
question — whether consent survives within marriage. In contemporary constitutional
democracies that prioritise dignity, autonomy, and equality, such an assumption appears
increasingly incompatible with modern human rights jurisprudence. Historically, the idea of
implied consent within marriage can be traced to patriarchal legal traditions that treated women
as subordinate to their husbands. Early feminist thinkers strongly criticised this notion. John
Stuart Mill and Harriet Taylor, for instance, described the denial of a woman’s control over
marital intercourse as a “gross double-standard” that perpetuated the subordination of women. 1
Similarly, suffragists Elizabeth Cady Stanton and Lucy Stone emphasised that a woman’s right to
control her own body was central to achieving genuine equality.2 These observations remain
strikingly relevant in societies where the law continues to hesitate in recognising non-consensual
sex within marriage as rape. Under Indian criminal law, rape is defined as sexual intercourse
without consent; however, Exception 2 to Section 63 of the Bhartiya Nyaya Sanhita ( 375 IPC )
creates a controversial distinction by exempting a husband from prosecution for raping his wife
(provided she is not a minor).3 This marital exemption reflects a Victorian moral legacy in which
sexual violence was often viewed as an offence against family honour rather than a violation of a
woman’s personhood .4 As one commentator notes, “a rape is a rape and a rapist remains a
rapist,” regardless of the relationship between the perpetrator and the survivor.5 The Union
Government has also argued before the Supreme Court that criminalising marital rape could
destabilise the institution of marriage and that the legislature has attempted to balance privacy
and dignity within matrimonial relationships. 6 This position illustrates the complex intersection
1
Government Law College Magazine Committee, ‘Marital Rape in India: De Facto But Not De
Jure’ (GLC Magazine, 2015) [Link]
but-not-de-jure/ accessed 30 January 2026.
2
Ibid
3
Srishti Sinha, ‘Marital Rape is Not Rape, Says the Constitution of India’ (The CBS Post,
2022) [Link] accessed 30 January 2026.
4
Ibid
5
Ibid
6
In Supreme Court, Centre Defends Marital Rape Exception’ Hindustan Times
[Link]
[Link] accessed 30 January 2026.
of law, culture, and social norms that continues to shape the discourse. Ultimately, the issue is
not merely about redefining rape; it is about reaffirming that dignity and autonomy do not
dissolve at the threshold of marriage.

Legal Framework Governing Marital Rape in India –

The legal framework governing marital rape in India must now be examined in light of the
Bharatiya Nyaya Sanhita, 2023 (BNS), which has replaced the Indian Penal Code. While the
BNS introduces structural and terminological changes to criminal law, it largely retains the
existing position on sexual offences within marriage.

Under Section 63 of the BNS, rape is defined as sexual intercourse committed without consent,
consent obtained by coercion, deception, or abuse of authority, or when the woman is incapable
of giving valid consent. The provision reflects contemporary understandings of consent and
bodily autonomy. However, Exception 2 to Section 63 continues to exclude sexual acts between
a husband and his wife from the offence of rape, provided the wife is above the prescribed age.
This exception effectively preserves the doctrine of implied consent within marriage, thereby
excluding married women from the full protection of rape law.7

The constitutional implications of this exception are significant. Article 21 of the Constitution,
which guarantees the right to life and personal liberty, has been judicially expanded to include
dignity, bodily integrity, and sexual autonomy. Denying married women protection against non-
consensual sexual acts raises serious concerns regarding the compatibility of the marital rape
exception with constitutional morality. Similarly, Article 14, which mandates equality before law,
is implicated when married and unmarried women are treated differently in cases of sexual
violence.8

Although criminal liability for marital rape remains absent, limited civil remedies are available
under the Protection of Women from Domestic Violence Act, 2005, which recognises sexual
abuse within marriage as a form of domestic violence. However, the Act is primarily remedial
and does not attach penal consequences equivalent to those imposed for rape.9 Thus, despite the
enactment of the BNS, the legal position on marital rape remains largely unchanged. The
7
Bharatiya Nyaya Sanhita 2023, s 63 Exception 2.
8
Constitution of India, arts 14 and 21; Justice KS Puttaswamy v Union of India (2017) 10 SCC
1.
9
Protection of Women from Domestic Violence Act 2005, s 3.
continued existence of the marital rape exception highlights the unresolved conflict between
traditional notions of marriage and the constitutional commitment to equality, dignity, and
personal autonomy.

Judicial Interpretation –

Indian courts have played a cautious yet influential role in shaping the discourse on marital rape,
primarily through constitutional interpretation rather than direct criminalisation. The Supreme
Court has repeatedly affirmed that sexual autonomy and bodily integrity are integral components
of Article 21, thereby recognising consent as the cornerstone of lawful sexual relations. In Justice
KS Puttaswamy v Union of India, the Court held that privacy includes decisional autonomy over
intimate matters, implicitly rejecting the notion that marriage extinguishes an individual’s right
to bodily self-determination.10

A significant intervention occurred in Independent Thought v Union of India, where the Supreme
Court read down the marital rape exception to exclude minor wives. The Court reasoned that
treating married and unmarried girls differently violated Articles 14 and 21 and was incompatible
with contemporary constitutional values. While the judgment stopped short of criminalising
marital rape involving adult women, it acknowledged that the marital rape exception is rooted in
outdated patriarchal assumptions rather than constitutional logic.11

High Courts have also expressed discomfort with the continued existence of the exception. The
Delhi High Court, while hearing challenges to the marital rape exception, observed that marriage
cannot be viewed as a licence for sexual violence and that consent remains relevant irrespective
of marital status. However, due to the absence of legislative clarity, courts have largely refrained
from expanding criminal liability through judicial fiat.12

Thus, judicial interpretation reflects a gradual shift from viewing marriage as a sphere of implied
consent to recognising it as a relationship between equal constitutional subjects, even though the
final step of criminalisation has been deferred to legislative action.

Critical Analysis –

10
Justice KS Puttaswamy v Union of India (2017) 10 SCC 1
11
Independent Thought v Union of India (2017) 10 SCC 800.
12
RIT Foundation v Union of India (Delhi High Court, pending reference).
The continued retention of the marital rape exception under Section 63 of the Bharatiya Nyaya
Sanhita, 2023 reveals a persistent disconnect between constitutional ideals and criminal law.
While the Constitution guarantees dignity, equality, and autonomy, the exception effectively
denies married women legal recognition as autonomous sexual agents. This selective exclusion
undermines the principle of equality before law by creating an artificial distinction between
married and unmarried women who suffer identical harm.13

From a constitutional perspective, the exception fails the test of reasonable classification under
Article 14, as it lacks a rational nexus with any legitimate state objective. Moreover, reliance on
civil remedies under the Protection of Women from Domestic Violence Act, 2005 is insufficient.
While the Act acknowledges sexual abuse, its remedial nature does not adequately reflect the
gravity of forced sexual intercourse, nor does it provide the deterrence associated with criminal
sanctions. This creates a hierarchy of sexual violence where identical acts are punished
differently based solely on marital status.14

The persistence of the marital rape exception also contradicts India’s international commitments,
particularly under the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW), which obligates States to eliminate discrimination in both public and private
spheres. By shielding marital rape from criminal scrutiny, Indian law risks perpetuating structural
inequality and normalising violence within the domestic sphere.15

In essence, the marital rape exception represents a legal anomaly that prioritises marital status
over constitutional rights. Unless legislative reform aligns criminal law with constitutional
morality, the promise of dignity and equality for married women will remain largely illusory.

Conclusion –

The continued existence of the marital rape exception reflects a troubling reluctance to fully
recognise married women as autonomous rights-bearing individuals. While constitutional
jurisprudence has consistently affirmed dignity, equality, and bodily autonomy as non-negotiable

13
Constitution of India, art 14; Bharatiya Nyaya Sanhita 2023, s 63 Exception 2.
14
Protection of Women from Domestic Violence Act 2005, s 3.
15
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),
1979.
values, criminal law continues to carve out an exception that places marriage above consent.
Such a position is increasingly incompatible with constitutional morality and modern
understandings of intimate relationships.

Judicial interventions have exposed the inherent contradictions in treating sexual violence
differently based solely on marital status, yet the absence of legislative reform has allowed these
inconsistencies to persist. Protecting the institution of marriage cannot come at the cost of
legitimising coercion or silencing harm. True marital harmony is founded on mutual respect, not
immunity from accountability.

Unless the law evolves to align criminal justice with constitutional promises, the gap between
rights on paper and justice in practice will remain unbridged. Criminalising marital rape is not
about dismantling marriage; it is about affirming that consent and dignity do not dissolve at the
altar.