Author(s): Kunjal Bhatnagar
Paper Details: Volume 4, Issue 4
Citation: IJLSSS 4(4) 28
Page No: 321 – 331
INTRODUCTION
“The husband cannot be guilty of rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract”. An infamous quote by Sir Matthew Hale who formulated the legal doctrine of marital rape exemption in his work ‘The History of Pleas of the Crown (1736). In his legal treatise, Hale argued that by entering into a marriage contract, a woman gave up her bodily autonomy to her husband, creating an immunity against the prosecution of marital rape. Historically, marriage was viewed as a patriarchal institution in which the husband exercised significant authority over his wife, while the legal identity and the autonomy of married woman were largely subsumed within that of their husbands. This husband-centric conception of marriage subsequently influenced legal doctrines that presumed a wife’s consent to sexual intercourse to be irrevocably granted upon marriage, thereby excluding marital rape from the traditional understanding of rape. Contemporary criminal law, recognizes consent as the cornerstone of sexual autonomy. The continued presumption of irrevocable consent within marriage therefore presents a direct constitutional dilemma, raising fundamental questions regarding the validity of the marital rape exception.
UNDERSTANDING THE REASONING BEHIND EXCEPTION
The offence of rape is fundamentally premised upon the absence of consent. To examine the continued exclusion of marital rape, it becomes essential to understand the legal rationale underlying the marital rape exception and the historical assumption that marriage creates irrevocable consent to sexual intercourse.[1]
The Bhartiya Nyaya Sanhita (BNS) criminalizes the offense of rape under section 63. It is an expansive section that includes both sexual intercourse and sexual penetration such as oral sex in the definition of rape. The amended act fails to penalize the marital rape and puts it as an exception under section 63(2). The section 63 of BNS defines rape[2] as follows:
A man is said to commit “rape” if he:
- penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
- inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
- manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
- applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
- against her will.
- without her consent.
- with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
- with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
- with her consent when, at the time of giving such consent, by reason of mental illness or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
- with or without her consent, when she is under eighteen years of age.
- when she is unable to communicate consent.
Exception 1: A medical procedure or intervention shall not constitute rape.
Exception 2: Sexual intercourse or sexual acts by a man with his own wife not being under the age of 18, is not rape.
Alongside the Explanation 2 of section 63 of BNS defined the meaning of consent as, unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. Provided, that woman does not physically resist to the act of penetration shall not by the reason only of the fact, be regarded as consenting to the sexual activity.
The retention of Exception 2 is not legislative silence alone. Successive Law Commission reports and expert committees have repeatedly examined the issue, revealing an evolving yet inconsistent approach towards the criminalization of marital rape. The 42nd Law Commission report critically addressed and recognized that there are certain situations in which although force and fraud cannot be established but the compulsion of the situation is such that woman’s will is dominated by the will of men and taking the advantage of the situation, the man takes liberties with the women. In such a situation it is really not a willing conduct on the part of woman. The commission addressed the need to a provision in a manner which is protected from misuse as well. It suggested three provisions to be added on this principle i.e. illicit intercourse of public servant with woman in his custody, illicit intercourse of superintendent etc with inmate of women/children institutions and lastly, illicit intercourse of manager etc of hospital with mentally disordered patient.[3] This reasoning presents a significant inconsistency. While the Commission acknowledged that a woman’s will may be dominated by the circumstances that negate genuine consent, it failed to extend the same principle to the marital relationship, where comparable concerns regarding coercion and absence of voluntary consent may substantially arise.
Secondly the 172nd report of the law commission directly addressed the issue and disagreed for the deletion of the exception of marital rape and reasoned that in case of any physical injury caused to wife by the perpetrator as husband there are appropriate laws. Additionally, the commission did recognize that being married to a victim does not give a husband discount on his punishment for the offence.[4] Here the reasoning, however appears internally inconsistent as although the commission accepted that marriage should not mitigate punishment for rape, it nevertheless retained the marital rape exception on the ground that its deletion would amount to excessive interference with the marital relationship.
In 2012, marking a departure from the tone of previous discussions, a committee constituted under Justice J.S. Verma (Retd.) advocated for the criminalisation of marital rape. This committee was formed in light of the nation-wide agitation seeking to make criminal law more efficient to deal with cases of heinous sexual assault against women. The committee published the ‘Report of the Committee on Amendments to Criminal Law’ (‘J.S. Verma Report’) in 2012. One of the suggestions given in this report was that marital rape ought to be criminalised. A two-fold recommendation to this effect was made. The preliminary recommendation was simply that the exception clause must be deleted. The second suggestion was that the law must specifically state that a marital relationship or any other similar relationship is not a valid defence for the accused, or relevant while determining whether consent existed or not and that it was not be considered a mitigating factor for the purpose of sentencing. This report discussed how the immunity granted in case the perpetrator is the husband of the victim stemmed from the outdated notion of women being the property of men and irrevocably consenting to the sexual needs of their husband. It remarked how this immunity has been withdrawn in a number of jurisdictions.[5]
Despite repeated acknowledgment of the issue by legal reformative bodies and expert committees, legislative efforts have not culminated the criminalization of marital rape. Parliamentary deliberations ultimately declined to incorporate these recommendations, citing concerns relating to the preservation of marriage, the availability of alternative remedies, and prevailing social realities.
CONSTITUTIONAL VALIDITY OF THE LAW OF EXCEPTION OF MARITAL RAPE
As analysed, the main crux behind the exception of marital rape is to preserve the marriage as a sacred institution but the continued retention of the exception overlooks the constitutional recognition of woman’s autonomy, dignity and liberty. The law defines the value of consent but fails to apply it in this aspect making it unconstitutional.
Under Article 14, that elaborates the reasonable classification. The marital rape exception creates a classification between married and unmarried victims of non – consensual sexual intercourse. While a woman subjected to non – consensual sexual intercourse by a man is not her husband is entitled to the protection of rape law, a similarly situated woman is denied protection only on the ground that the perpetrator is her husband. The basis of this classification is marriage. But Article 14, classifies reasonable classification on further two as aspects i.e. the classification should be based on intelligible differentia and the differentia should have a rational nexus with the object sought to be achieved. However, the object of rape law is to penalize non-consensual acts and protect an individual’s sexual autonomy, and bodily integrity and the harm suffered by a woman remains identical irrespective of her marital status. Consequently, exception 2 of section 63 fails to satisfy the test of reasonable classification under Article 14.
Additionally, if the classification were to be assumed as reasonable on the aspect of preservation of marriage, can the law deny a married woman control over her body. Where Article 21 protects individual’s life and liberty, such classification effectively denies a married woman the constitutional freedom to exercise decisional autonomy over her own body and compels submission to non-consensual sexual intercourse solely to preserve the institution of marriage.
Further the landmark judgment of K.S. Puttuswamy v. Union of India[6], did not directly rule on section 63 of BNS, but it provides the foundational constitutional framework that moved focus from patriarchal notions of “institutional privacy” to “constitutional dignity” of the individual. The court explicitly rejected the idea that institutions are the primary units of protection. Instead, it declared that the individual lies at the core of constitutional focus. So even when the constitution keeps an individual as the focal point, the sanctity of marriage cannot be invoked as a shield to deny the wife her constitutional rights. Additionally one of the most important aspect of Puttuswamy judgment, where the court held that privacy of body entitles an individual to the integrity of the physical aspects of personhood, so if the state is constitutionally mandated to protect the individuals bodily integrity as a part of fundamental right to privacy, then a law that legally permits the violation of that integrity by a spouse is arguably in direct conflict with the core constitutional focus. Lastly if dignity is a constitutional value that enables the meaningful exercise of liberty, then legal exception that force individuals into non – consensual sexual acts within marriage negate the constitutionality and violates Article 21.
Another landmark judgment, where the constitutional principles Joseph Shine v. Union of India[7] significantly weaken the normative foundation upon which the marital rape exception rests. While striking down the offence of adultery, the Supreme Court rejected the patriarchal conception of marriage that treated the wife as subordinate to or under the control of her husband. The court emphasized that marriage does not result in the surrender of an individual’s autonomy, dignity, or constitutional identity. If a married woman continues to posses’ independent decisional autonomy and bodily integrity, the presumption that marriage constitutes continuing and irrevocable consent to sexual intercourse becomes difficult to preserve a conception of marriage that Supreme Court has otherwise sought to discard.
While these landmark judgments by Supreme Court weakens the foundation of exception by laying down valid principles. There are also cases where the law of exception to marital rape was directly addressed as in Hrishikesh Sahoo v State of Karnataka[8] the High Court observed that the exception of marital rape cannot be absolute in the face of brutal sexual assault by a husband against his wife. It emphasized that marriage does not confer a special male privilege or a license to brutal acts. The court asserted that the Constitution of India guarantees equality under Article 14 and that women, as wives, cannot be treated as subordinate to their husbands from rape charges for acts against his wife, creates an inequality that destroys the “soul of the Constitution. The court did not formally stroke down the exception but made a strong observation that the law is archaic, regressive and fails the test of Article 14.
Lastly the case of X v. Principal Secretary, Health and Family Welfare Department[9], the Supreme Court was interpreting the Medical Termination of Pregnancy (MTP) Act and discussed who can access abortion services. While doing so, the Court observed that the “rape” under the MTP framework cannot be interpreted narrowly so as to exclude married woman, women who are victims of forced sexual intercourse by their husbands. The court specifically acknowledged that a woman may become pregnant as a result of marital rape and that such a situation can cause grave physical and, mental trauma comparable to rape outside marriage. Therefore, for the purpose of MTP Act, the Court held the term includes “marital rape”. This allowed married women who become pregnant due to forced intercourse by their husbands to seek termination of pregnancy under the related provisions of the act. This case is a clear instance where Supreme Court acknowledges that women are subjected to such forceful intercourse. The recognition of marital rape-induced under the MTP framework reveals a significant inconsistency within the Indian law. While the Supreme Court has acknowledged that forced sexual intercourse within marriage may amount to rape for the purpose of reproductive rights, criminal law continues withhold recognition of the underlying non – consensual act. This divergence highlights the urgent need for the legislative intervention to harmonize constitutional jurisprudence with substantive criminal law.
A consistent theme emerging from contemporary constitutional jurisprudence is the judicial recognition of the individual dignity, bodily autonomy and decisional freedom within marriage. Although courts have increasingly acknowledged that marriage does not extinguish a woman’s constitutional identity and have recognized the harms arising from non-consensual sexual relations and have recognized the harms arising from non – consensual sexual relations within marital relationships, the law continues to withhold full criminal recognition of marital rape. This reluctance identifies the harm but stops short of providing complete legal remedy. In the light of evolving constitutional values, legislative intervention is necessary to amend the law and ensure that institution of marriage is founded upon mutual respect, consent and equality rather than presumptions of irrevocable submission. Recognizing marital rape as an offence would not weaken the institution of marriage; rather, it would reinforce its legitimacy by ensuring that it rests upon mutual respect, equality, dignity, and free consent
COMPARATIVE JURISDICTIONS AND EMERGING GLOBAL CONSENSUS
A common trend across jurisdictions that have abolished the marital rape exemption, is the recognition that marriage cannot operate as a source of irrevocable consent. A significant shift in the understanding of marital consent can be observed in the decision R v. R[10] wherein House of Lords abolished the common law marital rape exemption that had originated from the doctrine propounded by Sir Mathhew Hale and criminalized it in 1991 through the Sexual Offences Act. The court rejected the notion that marriage confers irrevocable consent to sexual intercourse, observing that such a proposition was rooted in an era when wives were regarded as subordinate to their husband. Recognizing marriage as a partnership of equals, the Court held that a wife’s autonomy and right to refuse sexual intercourse continue to exist within marriage. Importantly, the Court characterized the marital rape exemption as an “anachronistic and offensive” that no longer reflects contemporary social and constitutional values. The jurisdiction that gave birth to doctrine of irrevocable marital consent has abandoned it as an anachronistic, while India continues to preserve its consequences through marital rape exemption.
India is also signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which defines discrimination against women as any distinction, exclusion, or restriction based on sex that impairs the enjoyment of human rights and fundamental freedoms on the basis of equality, irrespective of a woman’s marital status. The differential treatment accorded to married and unmarried victims under the marital rape exception raises concerns regarding the compatibility of such distinctions with these international obligations.[11]
Lastly Sweden is widely recognized as the country with the most progressive framework for prosecuting marital rape. The Swedish Penal Code (Brottsbalken) stipulates that any sexual act without explicit, ongoing and freely given consent is considered rape, irrespective of the marital or relational status of parties. Sweden’s framework reflects a broader international trend, with over 150 jurisdictions having abolished the marital rape exemption, recognizing that marriage cannot operate as immunity against sexual violence.
SAFEGUARDS AGAINST MISUSE FOR CRIMINALIZING MARITAL RAPE IN INDIA
No offence is withheld because it can be misused. Murder, robbery, dowry harassment, cruelty are all susceptible to false complaints, yet criminalization was never conditioned on a zero-misuse guarantee. The question is whether the harm for non-criminalization outweighs the potential harm arising from misuse. The constitutional values demand equal protection. Article 14 forbids arbitrary classification. Exempting husbands from the rape liability solely because of marital status lacks a rational nexus to any legitimate state interest.
Concerns regarding misuse are not without significance; however, the Indian criminal justice system is already equipped with procedural safeguards capable of addressing such concerns. The appropriate response, therefore, is not to deny recognition to the offence but to ensure strict compliance with existing procedural protections.”
Contemporaneous Documentation and Credibility Assessment- The police officer recording the FIR should record the date, time, manner of disclosure and note any delays and explanations.
Credibility Assessment- The law provides the opportunity to cross-examine the witness by impeaching her credibility by the virtue of section 148 of Bhartiya Sakhya Adhiniyam. Additionally, a definitive legal precedent Rai Sandeep v. State (NCT of Delhi)[12] the Supreme Court established “Sterling Witness Test” where the court established that for a conviction to stand on a single narrative, the victim’s testimony should be of sterling quality. The testimony should be inherently consistent and maintain absolute uniformity; there should be no resistance to cross examination except minor exaggeration which Supreme Court recognizes may happen in state of fear and trauma and lastly the sequence of event should meet basic human logic.
Existence of Prima Facie case before the issuance of process- the existing requirement under section 173 of Bhartiya Nagarik Surakasha Sanhita (BNSS), that the Magistrate demonstrating the existence of prima-facie case before issuing process should be strictly adhered to.
Time-bound investigation and expeditious adjudication would minimize prolonged uncertainty for both the complainant and the accused, thereby reducing the possibility of harassment through delayed criminal proceedings.
Mandatory In-Camera trials- The criminal procedural laws mandate In-Camera trials to protect both the complainant dignity and in cases of false allegations, protects reputation of the accused.
Costs and Compensation- Bhartiya Nyaya Sanhita provides a provision which already criminalizes malicious complaints, alongside there should be a provision to empower trial courts to award appropriate exemplary costs against complaints where courts record findings that complaint was fabricated with mala-fide intent.
The Indian criminal justice system is already equipped with a robust framework of procedural safeguards designed to ensure fair investigation, judicial scrutiny and due process. The possibility of misuse, therefore, cannot override the continued non-recognition of a substantive offence, particularly when the courts have consistently demonstrated the ability to asses evidence, prevent abused of legal provisions and distinguish genuine from frivolous or malicious claims.
RECOMMENDATIONS
I. Legislative Deletion of Exception 2 to Section 63 of the Bhartiya Nyaya Sanhita
The foremost recommendation is the deletion of Exception 2 to Section 63 of the Bhartiya Nyaya Sanhita. The continued exclusion of marital rape creates an artificial distinction between married and unmarried women despite the identical nature of the harm suffered. The offence of rape must remain centred upon the absence of free and voluntary consent, irrespective of the marital relationship between the parties. Such legislative reform would bring the penal law in conformity with Articles 14 and 21 of the Constitution and the evolving constitutional jurisprudence on dignity, privacy, and bodily autonomy.
II. Statutory Recognition that Marriage Does Not Constitute Continuing Consent
The legislature should expressly clarify within Section 63 that marriage or any domestic relationship shall neither create a presumption of continuing consent nor constitute a defence to the offence of rape. The determination of consent must remain a question of fact in every individual case. Such clarification would give statutory effect to the principles recommended by the Justice J.S. Verma Committee and align Indian law with modern consent-based criminal jurisprudence.
III. Strengthening Procedural Safeguards Without Diluting the Offence
Concerns relating to misuse should be addressed through the rigorous application of existing procedural safeguards rather than by denying recognition to the offence itself. Trial courts should continue to apply established evidentiary standards, including the principles governing the appreciation of testimony laid down in Rai Sandeep v. State (NCT of Delhi). Similarly, strict compliance with the procedural safeguards under the BNSS, including judicial scrutiny before issuance of process, time-bound investigation, in-camera proceedings, and consequences for demonstrably malicious complaints, would adequately balance the rights of both the complainant and the accused.
IV. Harmonisation with International Human Rights Commitments
As a State Party to CEDAW, India should progressively align its domestic criminal law with its international commitment to eliminate discrimination against women irrespective of their marital status. Comparative developments across jurisdictions demonstrate an emerging global consensus that marriage cannot operate as immunity against sexual violence. Legislative reform would therefore not represent a departure from established legal principles but an alignment with contemporary constitutional and international human rights standards.
WAY FORWARD
The continued retention of the marital rape exception under Section 63 of the Bhartiya Nyaya Sanhita represents a constitutional inconsistency within the Indian criminal justice system. While constitutional jurisprudence has progressively recognized bodily autonomy, decisional privacy, dignity, and equality as rights that survive marriage, criminal law continues to withhold equal protection solely on the basis of marital status.
The preservation of marriage cannot be achieved by subordinating the constitutional rights of one spouse to the legal immunity of the other. A marriage founded upon coercion cannot claim greater legal sanctity than one founded upon mutual respect, equality, and free consent. The criminalisation of marital rape would therefore not undermine the institution of marriage; rather, it would reinforce its legitimacy by affirming that marriage is a partnership of equals governed by dignity, autonomy, and continuing consent.
The question before the legislature is no longer whether forced sexual intercourse within marriage causes harm, the constitutional courts have increasingly acknowledged that it does. The remaining question is whether criminal law should continue to deny legal recognition to that harm solely because it occurs within marriage. A constitutional democracy committed to equality and dignity cannot permit such an inconsistency to endure.
Marriage may create a legal relationship, but it cannot extinguish constitutional rights; rather the sanctity of marriage will be purified as where consent ends, the protection of criminal law must begin.
[1] Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation of Marital Rape in India: Understanding Its Constitutional, Cultural and Legal Impact, 11 NUJS L. Rev. 1 (2018).
[2] Bhartiya Nyaya Sanhita, 2023,
[3]Fifth Law Commission of India, 42nd report on Indian Penal Code (June 1971) para.16.123
[4] Fifteenth Law Commission of India, 172nd report on The Review of Rape Laws (March 2000), para, 3.1.2.1
[5] JUSTICE J.S. VERMA COMMITTEE, Report of Committee on Amendments to Criminal Law (January 23, 2013).
[6] (2017) 10 SCC 1
[7] (2018) 2 SCC 189
[8] 2022 SCC OnLine Kar 371
[9] MANU/SC/1257/2022
[10] (1991) UKHL 12
[11] Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1979, 1249 U.N.T.S. 13, art. 1, https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-elimination-all-forms-discrimination-against-women.
[12] (2012) 8 SCC 21