Marital Rape and the Bharatiya Nyaya Sanhita: Should the Criminal Law Exception Continue?

Abstract

Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023 (BNS), reproduces the historic marital rape exception that first appeared as Exception 2 to Section 375 of the Indian Penal Code, 1860 (IPC), by stipulating that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape. While the Supreme Court in Independent Thought v. Union of India read down the earlier exception insofar as it applied to minor wives between fifteen and eighteen, the broader premise that marriage operates as a blanket defence to non‑consensual sex with an adult wife continues in the BNS. The marital rape exception has attracted sustained criticism from domestic law reform bodies such as the Justice Verma Committee and the Law Commission of India, as well as from international human rights bodies including the CEDAW Committee, all of whom have urged its removal. This paper interrogates whether the replication of the marital rape exception in the BNS can be normatively and constitutionally justified and asks whether the criminal law exception should continue in its present form. It situates the debate in the context of evolving constitutional doctrine on bodily integrity and sexual autonomy, the split verdict of the Delhi High Court in RIT Foundation v. Union of India, and emerging comparative trends on criminalisation of marital rape. It concludes that the continued retention of the marital rape exception in Section 63 BNS is inconsistent with Articles 14, 15 and 21 of the Constitution, incompatible with India’s obligations under CEDAW and emerging international norms, and unsupported by any compelling public interest rationale. The paper argues that the exception should be abolished and proposes a set of doctrinal and legislative reforms to integrate non‑consensual sexual acts within marriage into the general rape framework, while simultaneously addressing legitimate concerns about evidentiary burdens and misuse.