The institution of marriage has long been embedded in India’s socio-legal framework, reinforced heavily during British colonial rule. Each time the provision for criminalizing marital rape is brought forward, it collides with the perceived sanctity of marriage—a sanctity upheld at the cost of a woman’s constitutional right to bodily autonomy and dignity.
Section 63 of the Bharatiya Nyaya Sanhita, 2023, defines rape and under Exception 2, it reads: "Sexual acts by a man with his wife, the wife not being under 18 years of age, is not rape." While this replaces the Indian Penal Code’s earlier lower age of 15, the premise remains flawed. The defining factor should be consent, not marital status or age (beyond the age of majority). Critics rightly argue that such provisions enable state-sanctioned sexual violence, dismissing the principles of bodily integrity and individual agency.
The marital rape exemption has colonial roots. British common law once offered blanket immunity to husbands, treating wives as property and assuming that marriage implied irrevocable sexual consent. The UK itself later abolished this principle, notably in R v. R (1991), where the House of Lords declared that marriage does not amount to perpetual sexual consent. This progressive stance, however, is yet to find a foothold in India.
India’s own JS Verma Committee, formed in the wake of the 2012 Delhi gang rape case, unequivocally recommended the criminalization of marital rape. Yet, more than a decade later, this issue is still discussed only in courts, not codified in statute. Lower and High Courts across India have offered varied interpretations—some recognizing the need for legal reform, while others continue to uphold traditional patriarchal frameworks. This legal tug-of-war reveals the deeply entrenched conflict between evolving human rights norms and rigid cultural mores.
In Independent Thought v. Union of India (2017), the Supreme Court ruled that intercourse with a wife below 18 years amounts to rape, effectively modifying the marital rape exception to that extent. However, the Court stopped short of acknowledging marital rape in adult relationships, citing concerns over family stability and social norms.
The 2022 Delhi High Court split verdict further illustrates this impasse. Justice Rajiv Shakdher deemed the marital rape exception unconstitutional, highlighting its violation of a woman’s sexual autonomy and equality before the law. In contrast, Justice Hari Shankar upheld the exception, reasoning that distinguishing between married and unmarried women is a valid classification aimed at protecting the marital institution.
As the Supreme Court now takes up the matter, the question is no longer just a legal one—it is also moral, cultural, and constitutional. Will India finally recognise that consent within marriage is not implied or automatic? Or will it continue to justify a legal void that fails to protect millions of women simply because they are married?
The upcoming decision could redefine how India aligns its domestic laws with international human rights obligations, and more importantly, how it protects the dignity and autonomy of its women, married or not.
Section 63 of the Bharatiya Nyaya Sanhita, 2023, defines rape and under Exception 2, it reads: "Sexual acts by a man with his wife, the wife not being under 18 years of age, is not rape." While this replaces the Indian Penal Code’s earlier lower age of 15, the premise remains flawed. The defining factor should be consent, not marital status or age (beyond the age of majority). Critics rightly argue that such provisions enable state-sanctioned sexual violence, dismissing the principles of bodily integrity and individual agency.
The marital rape exemption has colonial roots. British common law once offered blanket immunity to husbands, treating wives as property and assuming that marriage implied irrevocable sexual consent. The UK itself later abolished this principle, notably in R v. R (1991), where the House of Lords declared that marriage does not amount to perpetual sexual consent. This progressive stance, however, is yet to find a foothold in India.
India’s own JS Verma Committee, formed in the wake of the 2012 Delhi gang rape case, unequivocally recommended the criminalization of marital rape. Yet, more than a decade later, this issue is still discussed only in courts, not codified in statute. Lower and High Courts across India have offered varied interpretations—some recognizing the need for legal reform, while others continue to uphold traditional patriarchal frameworks. This legal tug-of-war reveals the deeply entrenched conflict between evolving human rights norms and rigid cultural mores.
In Independent Thought v. Union of India (2017), the Supreme Court ruled that intercourse with a wife below 18 years amounts to rape, effectively modifying the marital rape exception to that extent. However, the Court stopped short of acknowledging marital rape in adult relationships, citing concerns over family stability and social norms.
The 2022 Delhi High Court split verdict further illustrates this impasse. Justice Rajiv Shakdher deemed the marital rape exception unconstitutional, highlighting its violation of a woman’s sexual autonomy and equality before the law. In contrast, Justice Hari Shankar upheld the exception, reasoning that distinguishing between married and unmarried women is a valid classification aimed at protecting the marital institution.
As the Supreme Court now takes up the matter, the question is no longer just a legal one—it is also moral, cultural, and constitutional. Will India finally recognise that consent within marriage is not implied or automatic? Or will it continue to justify a legal void that fails to protect millions of women simply because they are married?
The upcoming decision could redefine how India aligns its domestic laws with international human rights obligations, and more importantly, how it protects the dignity and autonomy of its women, married or not.
