ABSTRACT:
There is a strange gap that exists at the core of Indian criminal law. Outside marriage, the absence of consent is what determines an act rape. However, the notion of consent completely changes inside a wedlock. Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023 (BNS), which replaced Section 375 of the old Indian Penal Code, states that sexual intercourse by a husband with his adult wife does not amount to rape. The article analyses the advent of this exception and its historical continuance in the Indian law despite several amendments in the criminal jurisprudence. The article argues that the exception undermines Constitutional protections of equality and bodily autonomy and therefore there is a need for change in the current law.
INTRODUCTION:
Consent lies at the core of sexual offences. The sole test to determine a sexual offence is the test of consent. So, it is worth pausing on how odd it is that the same sexual act committed without consent does not become an offence just by the virtue of wedlock. Thereby, though unfortunate but still a husband can, under current law, violate the consent of his legally wedded wife unless she is a minor. This isn’t an accident of drafting. It comes from a much older idea, borrowed from English common law, that a wife’s consent was given once and for all at the altar and could never afterwards be withdrawn. That idea made its way into the IPC in 1860 and, remarkably, it is still there in 2026. This article asks why that is, and what it would take to change it.
COLONIAL INVASION AND CONTINUED LEGAL DOCTRINE
The exception traces back to Sir Matthew Hale, a seventeenth-century English jurist, who reasoned that by marrying, a woman had given consent to her husband that could not later be taken back. Surprisingly this exception still finds its place embedded in a criminal code written for twenty-first-century India. When the IPC was drafted in 1860, this doctrine was written straight into Section 375, and for over 150 years, almost nothing about it changed.
Even the 2013 Criminal Law (Amendment) Act, passed in the aftermath of the 2012 Delhi gang-rape case left the exception standing, despite the Justice Verma Committee explicitly recommending its removal. The one concession came in 2017, in Independent Thought v. Union of India, where the Supreme Court read the exception down so that it no longer covered minors between fifteen and eighteen, bringing it in line with the age of consent under the POCSO Act. But the Court did not delve into the question of consent between adults in a marital relationship.
CONSTITUTIONAL ANALYSIS
The marital rape exemption poses significant issues regarding Articles 14, 15, and 21 in the Constitution. Article 14 ensures equality before the law. By not allowing the same legal protection for married women against sexual offences that unmarried women have, the marital rape exception forms an arbitrary classification without a rational nexus to the goal of safeguarding bodily integrity. Marital status cannot adequately justify the less protection against non-consensual sexual behaviour. The Supreme Court’s interpretation of Article 21 has extended the ambit of personal liberty. In Justice K.S. Puttaswamy v. Union of India, the Supreme Court held that privacy includes bodily autonomy and the right to make decisions. This was also reiterated in Joseph Shine v. Union of India, where the Apex Court ruled against the offence of adultery, thus rejecting the patriarchal conception of the wife being a property held by the husband and promoting equality in marriage.
In Independent Thought v. Union of India, the Court interpreted the marital rape exception for wives under the age of 18, saying that marriage should not excuse sexual relations with a child. The point here is that while the ruling is limited to minors, it shows that the Court is willing to examine marriage laws in light of constitutional principles. The conclusion to be drawn from these cases is that marriage does not eliminate the requirements concerning respect for dignity, autonomy and bodily integrity.
A COMPARATIVE ANALYSIS:
Marriage has been recognized as no longer acting as a justification for sexual abuse in several countries. The UK abolished the marital rape exception in R v R, where the House of Lords ruled that the doctrine of irrevocable consent had become outdated. This change in the law has been similarly enacted in Canada, Australia, South Africa, Nepal, Bhutan and every single state in the USA. According to international human rights law, marital rape should be criminalized as mandated by CEDAW which calls for the elimination of gender-based discrimination and violence. CEDAW General Recommendations have also called on governments to criminalize marital abuse within their respective jurisdictions.
Those who oppose reform generally contend that the application of criminal law may lead to false accusations or misuse of criminal provisions. However, the fears regarding criminalisation are present in all of criminal law and can be addressed through the use of evidentiary standards, procedural safeguards, judicial procedures, and presumption of innocence. Hence, these concerns do not allow justification for providing blanket immunity for actions that would otherwise be deemed as rape just because the people involved are married. Therefore, significant reforms should involve removing the marital rape exemption in conjunction with the introduction of specialised investigatory regulations, trauma-informed policing practices, judicial training, and effective victim assistance programs.
CONCLUSION:
At bottom, the exception rests on a fiction: that consent given once, at a wedding, holds good forever after and needs no renewing. That’s not really a coherent idea, and it sits especially badly with a constitutional order that keeps insisting dignity and autonomy belong to the individual, not to institutions like marriage. The concerns over misuse though relevant but cannot be treated as a sole determinant in the criminal law jurisdiction. There is a need for a law carefully balancing evidentiary procedures to prevent misuse while upholding consent in a marital relationship.
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WRITTEN BY: SOMSUTA PAUL.
