The Marital Rape Exception in India: Constitutional Fault Lines and the Case for Measured Reform
ABSTRACT
The institution of marriage has long been treated in Indian law as a shield against criminal liability for sexual violence between spouses. Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023 — which replaces the erstwhile Exception 2 to Section 375 of the Indian Penal Code — continues to exclude non-consensual sexual intercourse by a husband upon his wife from the definition of rape, subject to certain conditions. This paper critically examines the constitutional, legal, and social dimensions of this exception. It traces the colonial origins of the marital rape exception, analyses the debates surrounding its retention in the BNS, and engages with the conflicting judicial positions that have emerged across Indian High Courts. The paper further explores both the arguments in favour of retaining the exception — rooted in concerns about social fabric, false complaints, and the sanctity of marriage — and the arguments against it, which rest on the fundamental rights of women to dignity, autonomy, and equality. The author concludes that the complete and immediate removal of the exception, without adequate procedural safeguards, may not be the most pragmatic solution in the Indian context. However, retaining it in its present form is constitutionally indefensible. A phased legislative reform, accompanied by procedural protections and awareness infrastructure, is the path most consistent with both constitutional values and ground realities.
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