India’s constitutional promise of equality, dignity, and bodily autonomy sits uneasily with one of its most persistent legal anomalies — the marital rape exception. Despite decades of constitutional jurisprudence affirming consent, privacy, and individual agency, Indian criminal law continues to exempt husbands from prosecution for non-consensual sexual intercourse with their wives above 18 years of age. Retained from colonial law and carried forward into the Bharatiya Nyaya Sanhita (BNS), 2023, this exception raises serious constitutional, ethical, and policy concerns.
What is the marital rape exception in Indian law?
Under the Indian Penal Code, and now Section 63 of the Bharatiya Nyaya Sanhita, sexual intercourse by a man with his wife is not considered rape if the wife is not below 18 years of age. In effect, marriage is treated as permanent consent to sexual relations, regardless of coercion or violence.
This legal position creates a stark distinction between married and unmarried women, denying married women criminal-law protection against sexual violence by their spouses. The exception has survived multiple criminal law reforms, even as other forms of gender-based violence have been recognised and criminalised.
Why does the exception undermine constitutional guarantees?
The marital rape exception directly conflicts with fundamental rights under Article 21, which guarantees the right to life with dignity, privacy, and bodily autonomy. The Supreme Court, in multiple judgments — including those recognising sexual autonomy and decisional privacy — has affirmed that consent is central to personal liberty.
By presuming irrevocable consent within marriage, the law negates a married woman’s agency over her own body. It also violates Article 14 by creating an unreasonable classification between married and unmarried women, and between husbands and other men, without any rational constitutional basis.
What do national data reveal about sexual violence within marriage?
Empirical evidence underscores the urgency of reform. The National Family Health Survey-5 shows that a large majority of women who report sexual violence identify their current husband as the perpetrator. This highlights that marriage, rather than being a protective institution, is often the setting for repeated sexual abuse.
The absence of criminal sanction leaves married women legally defenceless, particularly in situations of separation, abandonment, or ongoing domestic abuse, where forced sexual relations are often used as a tool of control.
What have expert committees and institutions recommended?
The demand to criminalise marital rape is not new. The Justice Verma Committee (2013), constituted after the Delhi gang rape, unequivocally recommended removing the marital rape exception. It observed that a law aimed at preventing sexual violence cannot exclude the most frequent perpetrators.
Several law reform bodies and women’s rights groups have similarly argued that marriage cannot be a valid defence against rape, and that consent must be continuous, revocable, and free — irrespective of marital status.
How does international law shape India’s obligations?
India is a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which requires states to eliminate discrimination in all matters relating to marriage and family relations. Retaining the marital rape exception places India in violation of this commitment.
The Constitution reinforces this obligation. Article 253 empowers Parliament to legislate to give effect to international conventions, while Article 51 directs the state to respect international law. Together, these provisions strengthen the constitutional case for removing the exception.
What arguments are raised against criminalising marital rape?
Opposition to reform often invokes the “sanctity of marriage” and fears of misuse. Critics argue that criminalising marital rape could destabilise families or lead to false cases.
However, these concerns are neither unique nor decisive. Similar arguments were raised against laws on domestic violence and dowry, yet the possibility of misuse was addressed through procedural safeguards, not by denying legal recognition to victims. The existence of misuse cannot justify the denial of protection from sexual violence.
Why does the debate reflect deeper patriarchal assumptions?
At its core, the marital rape exception rests on an outdated belief that marriage entails a woman’s submission to her husband’s sexual demands. This view prioritises family unity over individual dignity and treats women’s autonomy as secondary within marriage.
Such assumptions are incompatible with a modern constitutional democracy, where marriage is understood as a partnership of equals, grounded in mutual respect and consent, not coercion.
What is at stake in removing the exception?
Eliminating the marital rape exception would affirm that violence is a crime regardless of the relationship between perpetrator and victim. It would restore legal recognition to a married woman’s right to say no, reinforcing the principle that consent is indispensable in all sexual relations.
More broadly, it would signal India’s commitment to constitutional morality, gender equality, and human rights, aligning criminal law with both judicial precedent and international norms.
What to note for Prelims?
- Section 63 of Bharatiya Nyaya Sanhita and marital rape exception
- Article 21: dignity, privacy, bodily autonomy
- Justice Verma Committee recommendations
- CEDAW and India’s international obligations
What to note for Mains?
- Constitutional validity of marital rape exception under Articles 14 and 21
- Consent as a core principle of criminal and constitutional law
- Intersection of patriarchy, family law, and criminal justice
- Role of Parliament in aligning domestic law with international conventions
