Marital Rape Exception in India: Marriage, Consent and Constitutional Rights

Author

Lokesh Aggarwal is a 4th-year BBA LL.B. student at Maharishi Markandeshwar Deemed to be University, Mullana, Ambala.

Introduction

Rape is recognised as one of the most serious offences against the human body under Indian criminal law. It carries severe punishment, including, in aggravated circumstances, the death penalty.¹

Yet, within the very provision defining rape, there remains an exception that has survived decades of legal reform: a husband cannot ordinarily be prosecuted for raping his adult wife.

Rooted in colonial-era legal thinking, this exception raises an important question: does marriage change a woman’s right to decide what happens to her body? Despite significant developments in constitutional law, the issue remains unresolved and continues to be debated before the Supreme Court of India.

This blog examines the legal framework surrounding the marital rape exception, traces its treatment by Indian courts, and explores the constitutional arguments supporting and opposing its continued existence.

The Statutory Framework

Under Section 375 of the Indian Penal Code 1860 (IPC), rape was defined through specified circumstances involving sexual intercourse without legally recognised consent.² Exception 2 to the provision stated that sexual intercourse or sexual acts by a man with his own wife, provided she was not under eighteen years of age, did not constitute rape.³

The IPC was replaced by the Bharatiya Nyaya Sanhita 2023 (BNS), which came into force on 1 July 2024. The definition of rape is now contained in Section 63, but the marital rape exception has been retained in substantially the same form.⁴ Consequently, although the new legislation introduced a revised criminal law framework, it did not remove this longstanding exemption.

The practical consequence is significant. Where an adult woman is subjected to non-consensual sexual intercourse by her husband during a subsisting marriage, the act does not constitute rape under the marital exception, irrespective of the circumstances of coercion.

However, this does not mean that a married woman has no legal remedies. The Protection of Women from Domestic Violence Act 2005 recognises sexual abuse as a form of domestic violence and allows affected women to seek remedies such as protection orders, residence orders and monetary relief.⁵ Sexual cruelty may also be relevant in matrimonial proceedings or, where the statutory requirements are satisfied, criminal proceedings under Section 85 of the BNS.⁶

The central concern, therefore, is not simply whether other remedies exist. It is whether those remedies adequately address the harm when the criminal law excludes conduct from the offence of rape solely because of the relationship between the victim and the accused.

Judicial Engagement

The courts have addressed the marital rape exception gradually, beginning with questions concerning the age of consent and later examining its constitutional validity.

In Independent Thought v Union of India, the Supreme Court considered the exception as it applied to child marriages. The Court held that a husband could not rely on the exception where his wife was between fifteen and eighteen years old. It read down the provision to bring it in line with the legal age of consent.⁷ However, the Court did not decide whether the exception was constitutionally valid in relation to adult wives, leaving that question open.

The issue subsequently reached the Delhi High Court in RIT Foundation v Union of India. In 2022, a two-judge bench delivered a split verdict on the constitutionality of the exception. Justice Rajiv Shakdher held that the exception violated Articles 14, 15, 19(1)(a) and 21 of the Constitution. His reasoning centered on the principle that marriage cannot permanently take away a woman’s right to consent to sexual intercourse.⁸

Justice C Hari Shankar disagreed. He considered that marital and non-marital relationships could be treated differently because of the distinct nature of marriage. In his view, this classification constituted an “intelligible differentia” and did not violate Article 14.⁹

Since the judges could not reach a common conclusion, the matter proceeded towards the Supreme Court.

A related challenge arose in Karnataka in Hrishikesh Sahoo v State of Karnataka. The High Court refused to quash rape charges against a husband, holding that the marital rape exception did not provide husbands with blanket immunity.¹⁰ The Supreme Court subsequently stayed the ruling while the broader constitutional question remained under consideration.

The consolidated petitions were argued before a Supreme Court bench led by then Chief Justice D Y Chandrachud in October 2024. However, the hearing was deferred without a final judgment, as the bench could not conclude the matter before his retirement.¹¹

As of September 2026, the constitutional validity of the exception remains unresolved. Its continued presence in the BNS means that the debate over marital consent and criminal liability is far from settled.

Critical Analysis

The debate surrounding the marital rape exception brings two important considerations into conflict: an individual’s constitutional rights and the legislature’s authority to determine how criminal offences should be defined.

Bodily Autonomy, Equality and Dignity

The argument for removing the exception is closely connected to the constitutional principle of bodily autonomy.

In Justice K S Puttaswamy v Union of India, a nine-judge bench of the Supreme Court recognised privacy as a fundamental right under Article 21. The judgment also recognised the importance of individual choice and bodily autonomy.¹²

Applied to marital rape, this reasoning raises a fundamental question: if consent must be freely given, can marriage itself be treated as permanent consent to sexual intercourse?

Supporters of striking down the exception argue that the answer should be no. Marriage may establish a personal relationship, but it should not remove an individual’s right to refuse sexual activity. Consent must remain a personal and continuing choice.

The equality argument under Article 14 is equally important. A woman subjected to non-consensual sexual intercourse by a stranger may seek prosecution for rape, whereas a married woman subjected to similar conduct by her husband is excluded from that offence. The distinction is based on the marital relationship rather than the nature of the alleged violation.

From this perspective, the exception creates unequal protection under criminal law and raises concerns about the dignity and personal liberty guaranteed by Article 21.

The Arguments for Retaining the Exception

The opposing position, expressed by Justice Hari Shankar and reflected in the Union government’s submissions, does not necessarily deny the harm caused by non-consensual sex within marriage. Instead, it questions whether criminalising such conduct specifically as rape is the appropriate legislative response.

The government’s concerns have included the distinctive nature of marriage, the availability of existing legal remedies and the possibility of misuse during matrimonial disputes.¹³

One argument is that marriage involves a relationship of intimacy and mutual expectations that differs from a relationship between strangers. According to this position, the legislature may legitimately account for those differences when defining criminal offences.

Another concern is that rape prosecutions can have serious consequences for marital relationships and that allegations may arise during bitter matrimonial disputes. The government has also pointed to existing remedies under domestic violence and cruelty laws as ways of addressing sexual abuse within marriage.

Justice Hari Shankar’s judgment gave constitutional expression to the distinction between marital and non-marital relationships, treating it as a classification capable of surviving scrutiny under Article 14.

However, these arguments remain contested. The existence of a marital relationship does not necessarily establish consent to a particular sexual act, and the availability of alternative remedies does not automatically answer whether the exclusion from rape law is constitutionally justified.

Is There Room for a Different Approach?

The misuse argument also requires careful examination. The possibility of false allegations is not unique to marital rape cases. Criminal law generally relies on evidence, investigation and judicial scrutiny to determine whether allegations are established.

At the same time, concerns about the consequences of criminalisation, the structure of matrimonial relationships and the design of sexual offences cannot simply be dismissed. They raise questions about how legislation should distinguish between different forms of sexual violence and what safeguards may be appropriate.

A further question is whether the debate must be limited to two possibilities: retaining the existing exception or treating every instance of non-consensual sex within marriage identically under the law of rape.

Parliament could examine the broader structure of sexual offences, the relationship between criminal and civil remedies, and the safeguards required to protect both complainants and accused persons. Any alternative framework would still need to address the constitutional concerns surrounding consent, equality and dignity.

Ultimately, the central issue is whether marital status alone provides a sufficient constitutional justification for excluding non-consensual sexual intercourse from the offence of rape.

Conclusion

The marital rape exception remains one of the most debated provisions in Indian criminal law. Despite the introduction of the Bharatiya Nyaya Sanhita, the exemption has survived, leaving questions of consent, equality and bodily autonomy unresolved.

The Supreme Court’s eventual decision will have significant implications for the relationship between marriage and individual constitutional rights. It will also require careful consideration of Parliament’s role in defining criminal offences and addressing concerns about implementation.

Until the constitutional challenge is finally decided or the legislature changes the law, adult married women subjected to non-consensual sexual intercourse by their husbands remain excluded from the offence of rape under the existing exception, although other legal remedies may be available.

The larger question continues to demand attention: should marriage alter the legal recognition of a woman’s right to refuse sexual intercourse?

Footnotes

1. Bharatiya Nyaya Sanhita 2023, ss 64 and 66.
2. Indian Penal Code 1860, s 375.
3. Ibid, Exception 2 to s 375.
4. Bharatiya Nyaya Sanhita 2023, s 63, Exception 2.
5. Protection of Women from Domestic Violence Act 2005, s 3.
6. Bharatiya Nyaya Sanhita 2023, s 85.
7. Independent Thought v Union of India (2017) 10 SCC 800.
8. RIT Foundation v Union of India 2022 SCC OnLine Del 1404 (Shakdher J).
9. Ibid (Hari Shankar J).
10. Hrishikesh Sahoo v State of Karnataka 2022 SCC OnLine Kar 371.
11. ‘Supreme Court to Hear Marital Rape Pleas Next Week’ News Arena India (5 August 2024).
12. Justice K S Puttaswamy v Union of India (2017) 10 SCC 1.
13. Union of India, Affidavit filed in RIT Foundation v Union of India, Writ Petition (Civil) No 284 of 2015 (Delhi High Court, 2022).