05 Aug 2025

Marital Rape Exception Debate in India: Where Does the Law Stand?

Family Law
Marital Rape

The issue of marital rape in India has sparked widespread legal, social, and constitutional debate over the past few years.
At the center of this controversy lies a specific legal provision—Exception 2 to Section 375 of the Indian Penal Code (IPC),
now transitioned under the Bharatiya Nyaya Sanhita (BNS), 2023.

While some courts have questioned the constitutionality of this exception, others have upheld its validity,
leading to a divergence of judicial opinion. The matter now awaits a final and authoritative pronouncement from the Supreme Court of India.

What Does the Exception Say?

Under the earlier Section 375 of the IPC, rape was defined as non-consensual sexual intercourse.
However, Exception 2 stated:

“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

This effectively provided legal immunity to husbands from rape charges for acts committed within marriage.
In the revised law—Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023—the exception has been retained in similar terms, continuing the controversy.

The Core Legal Debate

The central legal issue is whether Exception 2 violates constitutional rights, particularly:

  • Article 14: Right to Equality
  • Article 15: Prohibition of discrimination
  • Article 21: Right to life and personal liberty

Critics argue that the exception discriminates against married women and denies them the same protection available to unmarried women.
On the other hand, supporters of the exception point to the institution of marriage and its legal implications.

Divergence in High Court Rulings

The debate gained traction due to conflicting judgments by High Courts:

  • In 2022, the Delhi High Court delivered a split verdict in a PIL challenging the constitutionality of the marital rape exception. One judge held it unconstitutional, while the other upheld its validity.
  • The Kerala High Court observed in certain cases that forced sex in marriage may amount to cruelty under other laws, such as Section 498A IPC or domestic violence provisions, but stopped short of labeling it rape.
  • Other High Courts have seen petitions on the issue, but many have deferred decisions, citing the matter as sub judice before the Supreme Court.

Supreme Court Intervention

Given the split in judicial opinions and the national importance of the matter, the Supreme Court of India is expected to form a Constitution Bench to resolve the issue. As of mid-2025:

  • Several petitions challenging the marital rape exception are pending before the apex court.
  • The Centre has sought more time for consultations, stating that the matter involves sensitive questions of law and policy.
  • Women’s rights groups, legal scholars, and civil society organizations have filed interventions, urging for clarity and reform.

Until the Supreme Court delivers a conclusive judgment, the law continues to treat non-consensual sex within marriage as not amounting to rape,
unless the wife is below the age threshold mentioned.

Global Context

Most democratic nations have criminalized marital rape, recognizing a woman’s right to bodily autonomy irrespective of marital status.
India remains among the countries that retain a legal exception to rape laws for married couples.

Conclusion

The marital rape exception debate represents a complex intersection of constitutional rights, societal values, and evolving interpretations of personal liberty.
With High Courts divided and public discourse intensifying, all eyes are now on the Supreme Court to deliver a decisive ruling on the matter.

As of now, the legal position remains unchanged—but the conversation continues to evolve, both inside and outside the courtroom.

Print Post
0