Constitutional Validity of Marital Rape Exception in India: Article 14, 15 and 21 Explained
Author: Deepti
Student at MERI Professional and Law Institute
Introduction
Till very recently Indian society viewed the institution of marriage primarily as a union that involved companionship, family and mutual duties and responsibilities. However, the legal quandary surrounding the definition of marriage vis-a-vis individual autonomy becomes acutely complicated when considering issues such as sexual consent. May marriage, in and of itself, confer on a man a license to have sexual intercourse from which he can extract a consent which the spouse has at best grudgingly offered, or, even worse, explicitly withdrawn?
India’s current criminal law provides an answer to this question that varies with the marital status of individuals.
Section 63 of the newly enacted Bharatiya Nyaya Sanhita, 2023 (“BNS”) defines rape by the circumstance of sexual intercourse with “her person” without her consent. However, Exception 2 to section 63 posits that “Sexual intercourse or sexual acts by any man with his own wife shall not be considered rape if the wife is not under eighteen years of age.” This means that, in law, the marital rape exemption persists.
This exception to the offence of rape has remained an object of extensive legal and social criticism, most often contending that it perpetuates gender inequality by drawing a distinction between the vulnerability of married and unmarried women which is inconsistent with India’s constitution.
It transgresses constitutional rights like equality, privacy, liberty, and dignity.
Defenders of the marital rape exemption (including the Government of India in the constitutional case that is awaiting hearing before the Supreme Court) have often raised arguments related to criminal-law policy; risk of abuse and false allegations; the inherent difficulty in obtaining corroboration for an alleged rape within marriage; and disruption to the institution of marriage.
Hence the issue is not simply a matter of policy: whether marital rape ought to be criminalised. It is a constitutional issue of the highest importance: Is there any constitutional justification for the state to deprive a married woman of the same level of legal protection against non-consensual intercourse which it provides to all other persons?
Such an inquiry mandates an analysis of Articles 14, 15 and 21 of the Constitution and the contours of consent and dignity, as understood by constitutionalism.
What Is the Marital Rape Exception?
The marital rape exception is a statutory provision wherein specific acts of non-consensual sex between a man and his adult wife, does not qualify as rape in the eyes of the law.
Existing in the form of Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita (BNS) of 2023, the BNS replaced the Indian Penal Code, 1860 on 1st July 2024. In spite of comprehensive overhaul of the Indian criminal legal framework, this exception remained untouched.
The important to note of this section can be seen by considering the same along with its larger structure.
The main section lays down the criterion that the absence of a woman’s consent during a sexual act shall constitute rape, and further, by means of an explanation, sets definition for the term ‘consent’ as an expressed unambiguous and volitional acceptance conveyed through gestures, actions, any spoken, oral or verbal message.
Even makes it clear that only ‘lack of bodily restraint’ against insertion should not be read as consent.
However, upon finding that the male is the woman’s husband, on which if the wife is an adult, Exception 2 removes sexual activity from purview of offence of rape. There is an interesting contradiction when we find criminal liability for lack of consent hinges on whether the involved man holds marital relationship with the victim who is above 18 years.
The ‘constitutional challenge to the issue comes into existence when we take into note these provisions’.
The Historical Problem Behind the Exception
Of course, the marital rape exception is nothing new or unique to modern Indian jurisprudence: it derives from an older vision of marriage, under which identity and sexuality were defined by the marital relationship rather than as the inherent, autonomous space of the individual.
Marriage, was assumed to grant an implied and continuous consent to sexual intercourse. Our more modern constitutional practice increasingly strays from this vision of marriage, as reflected in the Court’s various judgments on privacy, individual liberty and human dignity—constitutional rights can’t be extinguished simply because they are implicated in a social relationship.
The law can undoubtedly impose various legal obligations and create certain rights in a marriage, but it cannot turn an individual into the chattel of another: Which brings us to the awkward question that the marital rape exception poses: given that consent is of its own nature voluntary, how can the marriage between two individuals establish consent when such is clearly not given or it has been implicitly rejected by the husband as not applicable to particular intercourse?
Article 14: Does the Exception Discriminate Against Married Women?
The most significant constitutional argument against the marital rape exception derives from Article 14 which provides for equality before the law and equal protection of laws.
The fundamental argument is not complex. Suppose two adults women, each subjected to forced consensual vaginal intercourse with an adult man, but in one case the woman is married to the man and in the other, she is not. If the law treats the first case as rape but not the second case (solely because the perpetrator is the husband), the classification needs to be justified in constitutional law.
The traditional test under Article 14 provides that:
“The criteria (for classification) must be an intelligible differentia which distinguishes persons or things grouped together from those who are left out of the group, and the differentia must have a rational nexus to the object sought to be achieved by the law.”
The problem for the marital rape exception lies in determining how marital status can define enough severity to satisfy the commission of rape. The physical act itself might be extremely similar, the lack of consent identical, and the violation of bodily integrity potentially similar.
The only point of distinction is marital status.
In their 2022 split decision in RIT Foundation v Union of India, two judges of the Delhi High Court, Rajiv Shakdher and C Hari Shankar JJs., reached opposite conclusions on the validity of the marital rape exception on several constitutional grounds including Article 14.
Justice Rajiv Shakdher held the marital rape exception to be unconstitutional on various grounds including equality and dignity.
Article 15 and the Question of Sex-Based Discrimination
The criminalisation prohibition “prohibits the state making distinctions based on sex”; It does not say to married women: “You do not deserve to be as protected against sexual violence by the state as you do as women”.
But the fact of their being women has led to that result: We can investigate the discriminatory outcome of the marital exception by referring to the constitutional ideal of substantive equality: That legal provision “discriminates between adults and defines the crime in a way which means adult women enjoy a lesser degree of protection than adult men against sexual attack within marriage”.
The discriminatory impact of the law is greater when sexual offences committed between husbands and wives are considered in the context of other sections which “distinguishes between individuals as sexual persons and adults as women and men, single and married:”.
Such impact gets increased further as: “A married man is not immune and should not enjoy some other status for the act merely being married man and this formulation reflects a traditional notion in marriage: wife is to sexually belong to a man”.
Hence the question before the courts is whether the state: “can continue in its use of these criminal and civil law means to perpetuate these sexual stereotypes based on the sex and status of the persons as wife/woman/single in any relationship:”.
The transformative conception of the constitution Equality will require that the state cannot maintain those discriminatory legal outcomes based on the merely having of history.
Article 21: Dignity, Privacy and Bodily Autonomy
Arguably the most challenging principle to the marital rape exception is embodied by Article 21.
The Supreme Court has persistently broadened its understanding of Article 21 from physical existence to the right to live with dignity, the right to privacy, the right to decisional autonomy, and the capacity of individuals to make choices about their own lives and their bodies.
Very notably, K.S. Puttaswamy v Union of India recognised, as constitutional law, privacy, defined not merely as the right to be free from unwanted entry, but as an aspect of both individual autonomy and dignity.
Sexual autonomy is a natural consequence, and constituent, thereof. A choice about engaging in sex is intrinsically a personal one.
Whether consent exists, and is a free and voluntary consent, is not and cannot be created by virtue of another’s legal position.
A marital relationship may entail an expectancy or desire of sexual relations; but it is not the same thing as consent. This is a fundamental distinction that a court of law is uniquely equipped and obligated to draw.
A spouse might entertain a desire, have an expectation, or even have a legal or equitable claim to sexual relations with their partner, but the law cannot use that as justification for sexual use of that other person’s body without his or her consent.
The Supreme Court was well aware of the dimensions and seriousness of such a question in Independent Thought v Union of India where it held: Marital rape as against such child wives should not be treated with any lenity or impunity.
Marital rape can never be tolerated just because there is an interrelationship of marriage such that they provide exemption from rape law.
The court held the BNS was of a similar position when it came to child spouses below the age of 18: the latter treats individuals under the age of 18 years as child under the rape provisions of the law.
That ruling clearly signals that marital status alone cannot take away a spouse from the constitutional protections of personal autonomy and bodily autonomy. And so, the question is whether a similar protection extends to an adult spouse as well.
The Delhi High Court’s Split Verdict in RIT Foundation v Union of India
The debate of constitutional significance arose prominently with the decision of RIT Foundation v Union of India, decided by the Delhi High Court in May 2022.
The Division Bench constituting of Hon’ble Justice Rajiv Shakdher and Hon’ble Justice C. Hari Shankar delivered a split judgment regarding the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code, the precursor to the current provision in the BNS.
Justice Shakdher was of the opinion that the exception could not stand constitutional scrutiny.
This opinion was premised upon equality, dignity, bodily integrity and constitutional transformation of relationship between individual and institution of marriage.
Contrary thereto, Hon’ble Justice Hari Shankar found the exception to be constitutional.
This conclusion was founded upon the difference between marriage and non-marital relationship, the legislative character of the issue and institutional constraints upon judicial intervention.
Considerable weight was also accorded by His Lordship to the aspect of the potential reverberations of setting aside the exception into the institution of marriage and the criminal law policy at large.
In the face of a divided opinion, the Delhi High Court was not able to provide a final constitutional pronouncement of the same, the issue moving closer to the Hon’ble Supreme Court.
The Supreme Court and the Unresolved Constitutional Question
The Supreme Court took up the petitions arguing against the marital rape exception in 2024, These petitions challenge the retention of the marital rape exception in the new criminal law regime and questions on individual constitutional rights, consent and individual autonomy, and judicial powers in creation of law.
In its reply to the petitions filed in the Supreme Court, the Union Government opposed the idea of criminalizing marital rape through judicial interpretation, arguing that large issues concerning legislative policy, nature of marriage and likelihood of misuse of criminal law were involved in the problem.
The broad stance of the Union Government remained that any law concerning this issue of a magnitude of a change in a fundamental aspect of the status of individuals should be dealt with through legislature and not through creation of criminal liability via court intervention.
As on 2026, the marital rape exception under S. 63 of BNS is part of the statutory law, and the constitutional query has not led to the exception being eliminated from the Statute by way of judicial decree.
The final judgment of the Supreme Court will therefore not only shape the law of rape, but also have long-standing impact on the constitutionality of marriage, consent and personal autonomy.
The Argument in Favour of Striking Down the Exception
For instance, in the most fundamental sense the most important point in calling this law null and void is that the law cannot treat marriage as everlasting consent.
It is to fall foul of very principle of consent which necessarily must be private and specific. It could be consent to sexual intercourse on Tuesday while there could be rejection for the same on Wednesday the legal existence of marital relation cannot nullify this reality.
If law already takes care to recognize the lack of consent as an essential ingredient of rape, it can neither recognize exemption simply for reason of marital relation of the person accused with the victim.
Also, the justification of the cause is provided with Indian Law’s constitutional reinvigoration by the Indian Judiciary.
From the Navtej Singh Johar and Joseph Shine case(s) down to the Puttaswamy and the Independent Thought case, Supreme Court had been averring to uphold any law and social norm which subordinates the individual to an abstract ideology of morality, family, class or station in life.
The cases had a single undercurrent which spoke volumes for autonomy, dignity and the substantive Equality of all individual.
In light of this the judicial review of the present legislation of marital raped was clearly unassailable; as the same subordinate’s individuality to status, or for more obvious expression, the institution of family to the bodily autonomy of spouse of its partner.
The rationale behind this reasoning that the Constitution provides rights of all men & women and protects individuals not institutions when that institutions are against individual interest.
The Argument Against Judicially Striking Down the Exception
The position opposed is not that any rape occurs in marriage as acceptable. Instead, criminalisation raises many difficulties that would arguably better have been dealt with by Parliament.
Criminal law involves questions of definition, rules of evidence, investigation, prosecution and sentencing – a legislative change would provide more flexibility as to the kind of conduct that might be criminal, how accusations might be investigated and what might be prosecuted.
The government also flagged worries regarding the potential for malicious prosecution and evidential issues such as proving consent in the context of a marital intimacy.
It is also expressed concern that criminalising marital rape would impinge upon institution of marriage and that a wholesale approach via statute would be preferred over a remedy via the courts.
This again presents a further argument relating to separation of powers – courts may strike down an unconstitutional law, but can and should they also the definition of that law so to extend the scope of the current offence?
Forcing husbands under the marital rape exception into general rape provision will in practical terms be as if an unconstitutional exception were being struck down: but whether the issue falls into judicial nullification or judicial legislation is, again, part of a separation of powers debate.
This cannot therefore be simplified into an argument to the effect that ‘one side is pro-women the other pro-marriage.’
The institutional question, here, remains whether or not the change should be undertaken within the constitution and through which specific form.
Does Criminalisation Threaten Marriage?
The most prevalent objection is that a law criminalising marital rape could somehow damage the institution of marriage.
While this criticism needs consideration, it presupposes that this is indeed what the law at issue does. Marriage is a legal arrangement between the two parties in it.
While legal rights and obligations can be created, that does not abolish the individuality of each party.
If, however, the understanding of the law is that marriage is equality, then perhaps a law against sexual assault in no way compromises marital union: arguably it actually underpins the idea that a legal arrangement does not diminish one’s autonomy from its partner.
The stronger debate relates to whether ordinary criminal law is the right tool to police sexual assaults of this sort – this is entirely legitimate; however, this policy dispute doesn’t solve the constitutional debate.
One isn’t protected from constitutional examination merely because one affects marriage. The constitution doesn’t imply a constitutional right for the marital institution to be isolated from ordinary criminalisation.
The Misuse Argument and the Question of Proof
Perhaps another key problem arises here, and that is the problem of false accusations.
There is of course no reason simply to sweep this under the carpet. A Criminal Justice System has to include safeguards for the protection of an individual, or a number of individuals, of false prosecution, whatever they are purported to have done.
It doesn’t necessarily follow though, that merely because the risk is high for at least part of the criminal system, therefore that crime simply shouldn’t exist.
The criminal system does not necessarily have great problems determining credibility and the validity of evidence in criminal offences arising in domestic settings for example.
It would seem the normal answer to possible false complaints to take all appropriate legal safeguards such as fair investigatory processes, fair trial rights etc not necessarily a form of legal immunity for an entire class of potential accused.
The proper question is therefore whether appropriate safeguards can indeed be fashioned and applied to the criminal law without removing this specific section from any of the protected classes.
But again, these are, ultimately, design issues, not an automatic settlement of the constitutional challenge.
The Deeper Constitutional Issue: Can Marriage Change the Meaning of Consent?
The question that arises from the case is relatively easy to ask: Does having a legal title that marks you as spouse change the meaning of consent?
If consent means a freely given indication to engage in sexual intercourse, then marriage cannot equal blanket blanket-to-anything for all future acts, unless marriage means just that and not the commitment in the BNSs words of “equivocal consent”.
This presents a severe and, from a constitutional point of view, an unseemly split.
Here on the one hand is the idea that consent equals sex-in-the-loop, and on the other is the idea that because the perpetrator is legally married to the victim the normal concept of the meaning of consent has fundamentally changed to mean lack of refusal.
And it is the issue of what the law can constitutionally signify by “consent” – or its absence—that is at stake here, rather than just the criminal-law-policy question of whether we can have laws against marital rape, as such.
Conclusion
The marital rape exception is one of the hardest open legal questions, falling in the middle of criminal law, constitutional rights and the institution of marriage.
The Bharatiya Nyaya Sanhita, 2023 Section 63 continues to say that sexual intercourse or sexual act by a person of male gender towards his own wife, when she is not below 18 years, does not constitute rape.
Thus, the clause continues a distinction based on marital status although Indian constitutional jurisprudence increasingly views dignity, privacy, equality and physical integrity as integral components of an individual’s freedom.
The strongest case against the exception is marriage cannot imply irrevocable consent. A women’s constitutional personality does not wither away after marriage, and the right to physical integrity cannot be conditional upon whether the person to whom it is breached happens to be her spouse.
The strongest case for the retention of the exception revolves around institutional competence, legislative policy, complexities of evidence, and impact of using criminal law to reconstruct the marriage relationship.
The 2022 RIT Foundation judgment showed how deeply the constitutional issue is debated: Justice Rajiv Shakdher, opined that the exception was unconstitutional while Justice C. Hari Shankar upheld the provision leaving the matter undecided.
Subsequently, the case went to the Supreme Court, which started to hear the constitutional challenge in 2024.
Under the current law, the exception continues as provided in Section 63 of the BNS.
However, the constitutional argument is much more profound than simply the question of whether or not a particular statutory provision should exist.
It is actually asking what marriage means in the context of a constitutional democracy.
If one understands marriage as an association of equals, then one’s legal consequence can never be that the bodily autonomy of one person is forfeited to another.
Marriage may involve companionship, mutual obligation and expectations, but it cannot transform “yes” into an irreversible everlasting “yes”.
The ultimate test of constitutionality is perhaps very simple:
Can the institution of marriage justify removing from an individual one crucial component of bodily autonomy that the Constitution otherwise affords protection to?
Whatever the response of the Supreme Court to this question may be, will shape not only the legal landscape of marital rape in India, but also the constitutionality of marriage, consent, equality, dignity and personal liberty.
Frequently Asked Questions
Is Marital Rape a Crime in India?
Under Section 63 (Exception 2) of the Bharatiya Nyaya Sanhita (BNS), 2023, as of 2026, the act of the husband in having non-consensual sexual intercourse with his adult wife will not constitute the offence of rape.
However, other criminal and civil remedies might be available based on the factual scenario and the kind of behavior involved.
What is the marital rape exception under Section 63 BNS?
Exception 2 to Section 63 clarifies “Such sexual intercourse or sexual acts by a man with his own wife, provided that such wife is not under eighteen years of age, will not fall under the definition of rape.”
Is the marital rape exception constitutional?
The constitutional validity of this exception is contentious.
In a split verdict by the Delhi High Court in the case of RIT Foundation v. Union of India in 2022, the issue ultimately landed in the Supreme Court of India and will remain valid till such a time as it may be quashed or modified.
Which Constitutional Rights are Involved in the Case of Marital Rape?
The legal challenge has centred around various Constitutional Rights like Art 14 (right to equality), Art 15 (right to equal opportunities and prohibit all forms of discrimination), Art 21 (right to life including right to dignity, privacy, freedom and autonomy of being).
Furthermore, the right to freedom of speech under Art 19 has also come up in constitutional discourse.
Can Marriage be interpreted as an everlasting consent?
This very aspect has strongly come to refute and challenge in the recent Constitutional challenge.
Usually ‘consent’ means willing and specific participation, whereas Section 63 BNS specifically mentions an unequivocal voluntary consent by a woman to take part in a sexual act.
Will minor wives be protected against the marital rape?
No, the case will be different for minor wives, here the BNS states an individual younger than 18 years as a child in relation to the rape provision and the Supreme Court had already deleted the exception to the marital Rape case for the case of minor wives in Independent Thought v Union of India.
References
- Constitution of India, arts 14, 15, 19 and 21.
- Bharatiya Nyaya Sanhita, 2023, s 63, Exception 2. India Code — Bharatiya Nyaya Sanhita, 2023.
- Bharatiya Nyaya Sanhita, 2023, s 67.
- Independent Thought v Union of India, (2017) 10 SCC 800.
- RIT Foundation v Union of India, 2022 SCC OnLine Del 1404.
- K.S. Puttaswamy (Retd.) v Union of India, (2017) 10 SCC 1.
- Navtej Singh Johar v Union of India, (2018) 10 SCC 1.
- Joseph Shine v Union of India, (2019) 3 SCC 39.
- Suchita Srivastava v Chandigarh Administration, (2009) 9 SCC 1.
- Law Commission of India, 172nd Report on Review of Rape Laws (2000).
- Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law (2013).
- Supreme Court of India, judgments and orders concerning challenges to the marital rape exception.
- Ministry of Law and Justice, Government of India, legislative materials relating to the Bharatiya Nyaya Sanhita, 2023.