The Constitutional Pal

Valentine's Special Edition: The 'Key' to Rape

The marital rape exception (MRE), as enshrined under Section 375 of the Indian Penal Code (IPC), 1860 (now, repealed), and its equivalent currently-in-force provision, Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023, effectively exempts non-consensual sexual intercourse by a husband with his wife from the definition of rape, provided the wife is above 18 years of age. This provision has been a subject of intense legal and ethical debate, particularly concerning its alignment with the fundamental rights guaranteed under the Constitution of India. This article staunchly argues that the MRE violates Articles 14, 15, 19, and 21 of the Constitution of India.

Why The Sudden Hue-and-Cry?

If sex is a resource, every man seems to have a right to extract from female bodies after putting a ring on it in patriarchal society, then this valentine's day, love is a bond disguised as romance. Love is a performance of ownership, masked as devotion. The flowers, the chocolates, the grand gestures—all are affirmations of a system where affection is measured by possession, and desire is legitimized through institutional control.

A state's High Court—Chhattisgarh High Court—in India acquitted a man accused of non-consensual, unnatural acts leading to his wife's death, underscores this troubling paradigm.1 The court's decision hinged on the legal stance that a husband cannot be charged with rape or unnatural sex with his wife, provided she is above 15 years of age. It keeps digging on the remnants of coverture—a doctrine where a woman's legal rights are subsumed by her husband's upon marriage. The law's failure to recognize marital rape as a criminal offense, except in specific circumstances, perpetuates a narrative where the sanctity of marriage eclipses the necessity of ongoing consent.

A woman's consent is always a point of negotiation. And, in marital context, it becomes a clause that is deemed to be immaterial. And, constitutional morality of Indian legal system conveniently begins after that. This dissonance is enough to prove how the fictive carrot constitutional values are often dangled before the eyes of lived reality of women’s rights.

Under the Medical Termination of Pregnancy (MTP) Act, 1971, the Supreme Court has interpreted “rape” broadly to include marital rape—so if a woman becomes pregnant because her husband forced sex on her, she can seek an abortion to protect her bodily autonomy.2 The Court has said in the case:

This interpretation is rooted in the right to reproductive self-determination. However, the criminal law—specifically, Section 375 IPC or Section 63 of the BNS—still contains an exception (Exception 2) that excludes marital rape from being treated as rape unless the wife is below a certain age. In effect, criminalizing marital rape would mean overturning a long-standing legal exemption that is argued by many lawmakers to be essential for preserving the institution of marriage.

Let’s see what the Legislature/Executive/State had to say in the infamous Split Verdict judgement3:

In this case, Justice Rajiv Shakdher ruled in favor of striking down the MRE, stating that:

“A woman’s bodily autonomy and consent cannot be overridden by the mere fact of marriage. Exception 2 of Section 375 IPC is unconstitutional as it treats married and unmarried women unequally and violates Articles 14, 15, and 21.”

Conversely, Justice C. Hari Shankar upheld the MRE, arguing that:

“Marriage creates an institution governed by mutual rights and obligations. Criminalizing non-consensual sex within marriage could destabilize the fabric of marriage and family.”

This judicial impasse left the matter unresolved, forcing the issue back to the legislature, which has so far been reluctant to amend the law.

While the MTP Act, 1971 has been given a purposive interpretation to include marital rape—thereby protecting a woman’s reproductive autonomy4—the BNS continues to uphold the MRE. This discrepancy raises a fundamental question: if the court is willing to extend the meaning of “rape” under the MTP Act to ensure women’s rights, why does it not similarly reinterpret the BNS to protect vulnerable wives from non-consensual marital sex? Why suggest a backdoor solution to bring forth cases against the husband when there is a marital rape? Why does the government hesitate in acknowledging the scenario where the wives can level the grave situation of getting maritally raped by their husband by bringing an appropriate action against them, the rapist? The only part of “the perpetrator, the victim, the act and the punishment” is not rightfully fulfilled is the last one.

In the context of the MTP Act, 1971 the Court has used a teleological (or purposive) approach to protect a woman’s right to decide about her own body by including cases of forced marital intercourse under “rape.” However, as seen in the paragraphs 119–131, the Court, or at least a portion of the bench, has argued that the unique nature of the marital relationship—viewed as “sacred” and characterized by an inherent expectation of conjugal rights—justifies excluding such acts from being labeled as rape under the IPC or BNS.

The court’s reasoning stresses that any change to the MRE in the criminal law is a matter for the legislature, not for judicial reinterpretation. This is because the legislature, with its vast resources and wider mandate, has deliberately chosen to treat non-consensual marital sex differently from stranger rape. The court cites the “intelligible differentia” between non-consensual intercourse by a stranger and that by a husband, arguing that the latter does not produce the same level of physical, emotional, and psychological trauma—and thus, should not attract the criminal label of “rape.”

The argument could stress that while the MTP Act’s interpretation highlights the grievous impact of forced sexual intercourse on reproductive autonomy, it paradoxically underscores the vulnerability of wives who may not have any other effective remedy. If a forced act within marriage can lead a woman to seek an abortion, it is clear that the experience is non-consensual and harmful. Yet, the same act is not criminalized under the IPC or BNS, leaving vulnerable wives without comprehensive legal protection. This inconsistency suggests that the rationale used to protect reproductive rights (by broadening the definition of rape) could logically be extended to the criminal sphere, where failing to do so leaves women exposed to abuse with no straight legal recourse.

While the judiciary has not hesitated to read constitutional morality into statutes (“legislated from the bench”)—such as striking down adultery laws in Joseph Shine5 or affirming workplace protections in Vishaka6 to protect fundamental rights, it appears more restrained or conspicuously deferential on the issue of marital rape in the IPC or BNS. One might argue that this restraint, justified as deference to the legislature, essentially means the court is accepting the status quo—despite the fact that the legislative change (as seen in the BNS 2023) has not yet eliminated the MRE. Therefore, by drawing a boundary in the criminal context, the court effectively signals that it believes issues of marital rape (outside the MTP framework) require legislative action—even if such legislative inaction leaves many vulnerable wives unprotected. This obvious guise (justifiably so) of respecting legislative prerogative, but it also reflects the deep-seated patriarchal assumptions that continue to shape Indian law. The fear of disrupting marriage as an institution takes precedence over protecting a woman’s autonomy, reinforcing an outdated notion of conjugal rights that subordinates consent to marital status.

The opposing view argues that forced sex within a marriage is fundamentally different from rape by a stranger. They claim that, by virtue of marital obligations, a husband cannot be labeled a rapist—even if he compels sex against his wife’s will—because the marital relationship implies a continuing, albeit complex, consent. This argument rests on traditional notions of conjugal duty and the sanctity of marriage. It remains blind to the harm or loss of autonomy experienced by a woman whose bodily integrity is violated, by her own husband. Moreover, even if the emotional and physical impact differs, the underlying violation of a woman’s right to control her body remains significant. The assertion that the unique dynamics of marriage somehow shield a husband from criminal culpability even when his actions are non-consensual and the court’s reliance on the argument that forced sex within a marriage is categorically different from rape by a stranger—and thus that a husband cannot be deemed a rapist due to marital obligation—is nothing more than over-scrupulousness. This position, as advanced by the opposing state, essentially excuses a husband’s non-consensual actions simply on the basis of a supposed marital duty. It somehow brings the act of denial of sex in marital relationship as a form of cruelty into play.

The court’s marked restraint in extending its teleological interpretation to the BNS on the issue of marital rape is equally contentious compared to its purposive approach under the MTP Act. This restraint is partly due to concerns about judicial overreach—avoiding the substitution of judicial opinion for legislative judgment. However, additional factors could be speculated due to such long-stretched ignorance. This selective activism reveals not only an undue deference to outdated legislative assumptions but also a reluctance to challenge entrenched power dynamics within the institution of marriage. Many legislators and traditional stakeholders view marriage as an institution defined by mutual obligations, where altering the definition of rape could disrupt established social norms. While recognizing the exploitative nature of forced marital sex (or “sexual labour”) in a frame of reference away from BNS, the Court appears to draw a boundary by deferring to the legislature on criminal matters, suggesting that any drastic reform—like criminalizing marital rape in the IPC or BNS—requires a broader societal consensus and legislative action. This position indicates that the Court, while sympathetic to the plight of vulnerable wives from a safe distance, consider that a shift in the criminal law definition could have far-reaching implications that might destabilize the institution of marriage—even if that preservation comes at the expense of justice and equality for women.

The Court has been at the forefront of transforming traditional notions of marriage in India—for example, by recognizing live-in relationships as a legitimate and legally protected form of cohabitation. This pioneering evolution shows that the Court is capable of reinterpreting marital norms to reflect contemporary values and individual autonomy. Yet, when it comes to the issue of marital rape under the IPC or BNS, the Court draws a rigid line. Critics argue that this selective activism is deeply inconsistent: if the Court can expand the definition of marriage and even decriminalize adultery when it benefits personal freedom, why then is it unwilling to extend its transformative reasoning to protect vulnerable wives from non-consensual acts by their husbands? This hesitation suggests that while the judiciary is prepared to modernize certain aspects of the marital institution, it remains constrained by an unyielding deference to traditional marital obligations in criminal law—thereby leaving many women without adequate protection.

Gang Rape by Two Persons: One Being Husband & Other, A Stranger to the Woman?

Ms. Nundy pointed out this circumstance as an illustration that in case of a gang rape, the husband gets an immunity and the other[s] can be labelled as rapists. Under Section 376D IPC (now Section 64 BNS, 2023), gang rape is a punishable offense, but due to Exception 2 of Section 375 IPC (now Section 63 BNS, 2023), the husband is granted immunity even if he participates in the crime. This legal absurdity creates a situation where a stranger’s act is recognized as rape, but the same act by the husband is dismissed as a marital right.

This chasm underscores the artificial distinction Indian law makes between rape within marriage and rape outside marriage. It highlights the urgent need to recognize that marital status should not nullify a woman’s right to bodily autonomy.

Why the ‘Destabilization of Marriage’ Argument is Fundamentally Flawed?

One of the primary objections to criminalizing marital rape is the claim that it would “destabilize marriage” by eroding the sanctity of the institution and increasing false allegations. However, this argument is deeply flawed, both legally and morally. A legal system should prioritize individual rights over social customs. If a marriage is “destabilized” because a woman asserts her right to bodily autonomy, then the problem lies not with the law but with the societal perception of marriage.

Marriage is built on mutual respect, trust, and consent—not coercion. Criminalizing marital rape does not criminalize consensual sex within marriage; it only criminalizes forced sex, where one partner violates the other’s bodily autonomy. If a law protecting a woman’s right to say ‘no’ to forced intercourse “destabilizes” a marriage, then the foundation of that marriage was already flawed—because no healthy relationship should be contingent on forced sex.

Flipping the argument: If we accept that criminalizing forced sex within marriage threatens marriage, then we must also accept that marriage relies on forced sex for its survival—which is both morally repugnant and legally indefensible.

The idea that a wife’s consent is permanently given at marriage is a colonial-era legal doctrine derived from British common law. Sir Matthew Hale (1736) stated that: “By marriage, a woman consents to sexual intercourse with her husband irrevocably.”7 The UK abolished the marital rape exception in 19918, yet India—despite claiming to be a modern democracy—continues to uphold this outdated notion. Marriage does not negate a woman’s autonomy over her body. No contract (including marriage) can force an individual to engage in non-consensual acts.

Over 100 countries have criminalized marital rape, including the US, UK, France, Germany, Canada, Australia, and South Africa. There is no evidence that these laws led to mass destabilization of marriages or a breakdown of family structures. On the contrary, legal protection for women strengthens marriages by ensuring that both partners are treated with dignity and respect.

Opponents argue that criminalizing marital rape will lead to false cases, just like in certain dowry or domestic violence cases. However, this concern is exaggerated for several reasons, primary one being, false cases exist in all crimes (murder, theft, etc.), but we do not remove those laws. Courts have safeguards—burden of proof remains on the complainant, and evidence is required for conviction.

Flipping the argument, Again: If fear of false cases is a valid reason to retain the marital rape exception, then should we also abolish laws against murder and theft because some cases are falsely reported?

Criminalizing marital rape would not destroy marriages—it would simply affirm that marriage is not an excuse for sexual violence.

The fundamental purpose of the law is to protect individual rights and dignity, not to uphold outdated social customs. The argument that criminalizing marital rape could destabilize marriage is based on the assumption that:

This assumption is unconstitutional because allowing marital rape to remain legal prioritizes outdated social structures over constitutional rights. The argument that criminalizing marital rape would destabilize marriage is based on an outdated, patriarchal, and legally flawed premise. If anything, marriage should be strengthened by mutual respect and consent, not by coercion and immunity from accountability.

Let's keep the process unlearn-and-learn intact and continuous: Marriage is not a license to rape. Laws should evolve to reflect constitutional morality, not outdated patriarchal customs. Protecting women’s autonomy does not weaken marriage—it strengthens it.

Flipping the argument, For the last time:If a husband truly respects his wife, then the criminalization of marital rape should not be a concern for him—because a loving and respectful husband would never force his wife into sex against her will.

Why Courts Must Act?

The Delhi High Court’s split verdict reflects the larger struggle between constitutional morality and patriarchal tradition. While one judge upheld women’s autonomy, the other prioritized marital stability over fundamental rights. This impasse leaves millions of married women without legal recourse against sexual violence within marriage.

The Supreme Court must now resolve this deadlock—not by deferring to the legislature, but by upholding constitutional rights over outdated marital norms. The position is and will always (and, as it should) be clear:

If the various machineries of state fails to act, it risks perpetuating a legal contradiction—where a woman can seek an abortion for a marital rape pregnancy but cannot seek justice against her rapist husband. In cases like Vishaka9 and Joseph Shine10, the Supreme Court has not hesitated to intervene where laws were outdated or discriminatory. The same approach should apply to marital rape, given its constitutional violations. The court cannot abdicate its duty just because the legislature has failed to act. When fundamental rights are being violated, the judiciary has a constitutional obligation to step in.

This legal hypocrisy must end.

Footnotes:

  1. Gorakhnth Sharma v. State of Chhattisgarh, 2025 SCC OnLine Chh 2287, decided on 10-02-2025↩

  2. X v. HEALTH AND FAMILY WELFARE DEPARTMENT, 2022 SCC OnLine SC 1321↩

  3. RIT Foundation v. Union of India↩

  4. Refer Footnote Number 2.↩

  5. Joseph Shine v. Union of India, [2018] 11 S.C.R. 765↩

  6. Vishaka and Ors. v. State of Rajasthan and Ors., AIR 1997 SC 3011↩

  7. The History of the Pleas of the Crown, vol. 1 (1736)↩

  8. R v R [1991] UKHL 12↩

  9. Refer Footnote Number 6.↩

  10. Refer Footnote Number 7.↩