A centuries old esoteric doctrine is brought before the Supreme Court in its sacred chambers . The constitutional challenge is still pending under the new judicial leadership after the Indian Government told the Supreme Court in October 2024 that making marital rape a crime would be excessively harsh .The harsh reality that confronts India's judiciary is that, with an average of 90 rapes reported daily in 2022, crimes against women increased sharply from 3.37 lakh in 2014 to 4.45 lakh in 2022—a rise of more than 30%.
One of the most contentious gray areas in contemporary jurisprudence is the marital rape exception, which is currently enshrined in Section 63 of the Bharatiya Nyaya Sanhita 2023. This legal conundrum contrasts sharply with the reality on a global scale, where UNICEF estimates that 1 in 8 women and girls, or over 370 million, have experienced sexual assault or rape at least once before turning 18. This exception's stubbornness is further compounded by the fact that over 60% of countries still have laws against consent-based rape, according to data from UN Women.
The statistical horizon supports the need for reform as India struggles with this constitutional issue. Additionally, research shows that lakhs The statistical horizon supports the need for reform as India struggles with this constitutional issue. Furthermore, research shows that thousands of cases are hidden behind the constitutional veil of marriage, creating a constitutional crisis that demands judicial intervention.
The Historical Structure: Colonial Underpinnings and Present-Day Inconsistencies
The exception for marital rape serves as a clear reminder of the influence colonial jurisprudence has had on Indian jurisprudence. "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape," was the clear statement made in Exception 2 to Section 375 of the IPC . This clause, which has since been removed as Section 63 of the Bharatiya Nyaya Sanhita 2023, provides legal immunity that essentially transforms what would otherwise be considered rape into an act that is recognized by the law within a marriage. Against the backdrop of marriage, consent, and criminal law, it also carries the silent voice of societal indifference that permeates every legislative change throughout history.
Three historical arguments support maintaining this exception:
• The Doctrine of Coverture, which states that a wife adopts her husband's legal identity.
• The assumption that consent to sexual activity is given at marriage and cannot be revoked.
• The state's reluctance to meddle in the private realm of marriage.
Social progress, women's rights movements, and constitutional jurisprudence are gradually undermining these flimsy defenses. Importantly, in Independent Thought v. Union of India (2017) the Supreme Court stepped in to raise the consent age from 15 to 18 years old, ruling that if one of the parties is legally incapable of giving consent, then consent cannot be presumed within a marriage. The demand for the exception has only increased as a result of this partial recognition of it complete abolition..
I. The Constitutional Conundrum - Fundamental Rights vs. Marital Immunity
A constitutional paradox that cuts to the heart of the fundamental rights jurisprudence is presented by the marital rape exception. The Supreme Court has ruled that Article 21, which guarantees the Right to Life and Personal Liberty , rig, encompasses the Right to Bodily Autonomy and Dignity. However, the exception creates a matrimonial enclave where these fundamental rights are suspended. First of all, by creating a distinction based on marital status, the exception violates Article 14's Right to Equal Treatment .
There is still no answer to the central question that arises: Does a woman have the right to say "NO" after marriage? – remains unanswered
The global data analysis provides compelling evidence in favor of reform. According to the most recent NCRB data, "Violence by Spouse or Family Members" is the most serious offense against women under the BNS, highlighting the protection of implied "marital" consent.
Second, the exception erodes the protection of personal liberty and dignity provided by Article 21's. The Supreme Court's affirmation in Navtej Singh Johar v. Union of India that "self-governance is the capacity to choose one's own life path" becomes meaningless when marriage is interpreted as a sign that a woman's right to sexual autonomy is forfeited. In K.S. Puttaswamy v. Union of India , the constitutional bench noted that privacy includes "Decisional Autonomy" and the "Right to make Intimate Decisions." A legal loophole created by marriage allows licenses the breach of basic freedoms and rights. Additionally, the exception contradicts global human rights obligations. The exception perpetuates gender inequality and undermines the principles of Convention on the Elimination of All Forms of Discrimination against Women .
II. Judicial Jurisprudence - The Evolving Discourse
The larger struggle between traditional practices and modern rights is reflected in the Indian judiciary's position on spousal rape. Responding to a petition filed by the National Legal Services Authority (NALSA), the affidavit contended that the exception was required to safeguard couples' privacy and the sanctity of marriage. Legal experts noted that the state's decision to make marital rape a crime because it is "overly severe and therefore, unjust" in a marriage setting represents a significant policy decision.
Kerala's position proposed a radical departure from the accepted interpretation techniques. The Court noted that "physical relationship is an important aspect of married life, but it should be with the consent of both" and acknowledged marital rape as a legitimate reason for divorce. This legal acceptance of non-consensual sexual activity
Kerala's stance posited a stark shift from the conventional methods of interpretation. The Court recognized marital rape as valid grounds for divorce, observing that "physical relationship is an important aspect of married life, but it should be with the consent of both." Although it does not criminalize the practice, the court's recognition of non-consensual sexual contact during marriage as a matrimonial offense marks a significant change in the logic of the legal system. The masked marital sexual violence has also been acknowledged by the Bombay High Court in its remarks in a number of domestic violence cases. the Protection of Women from Domestic Violence Act, 2005 , which acknowledges sexual abuse as a type of domestic violence but does not impose criminal penalties comparable to rape, has limited these court rulings to civil remedies for the pious marriage system.
III. Comparative Analysis - Global Perspectives and Legislative Trends
The global scenario shows how quickly spousal rape is being recognized as a crime and given legal protections across the globe. Progressive jurisdictions continue to advance comprehensive reforms, despite the fact that over 60% of countries still lack rape laws based on the principle of consent, according to UN Women's most recent statistics.
The landmark ruling in R v. R (1991) from the United Kingdom, which held that "a rapist is still a rapist no matter his connection with his victim," sparked a global wave of similar reforms. The comprehensive approach taken by the EU illustrates efficient implementation without creating social unrest. Scandinavian countries, Germany, and France have developed sophisticated legal systems that recognize spousal rape and incorporate safeguards. By 1993, spousal rape was illegal in every state in the United States, with 30 years of testament against claims that such laws are detrimental to institution of marriages or lead to more false reports.
Developing nations have also embraced reform. After the end of apartheid, South Africa's laws explicitly forbid spousal sexual assault, whereas nations such as Rwanda and Kenya have passed thorough laws against sexual violence that do not differentiate between married and unmarried
The global trend toward criminalization is due to a number of factors, including (a) the recognition of women's equality, (b) an understanding of the psychological and physical harm that sexual assault causes, and (c) the conviction that marriage does not compromise fundamental human rights. However, conflict still exists in some parts of Asia and Africa, which are commonly attributed to cultural disparities and traditional practices. This opposition demonstrates the ongoing conflict between regional cultures and human rights standards, which India must address in its legal discourse.
IV. The Path Forward - Legal Certainty in an Uncertain Terrain
In considering the "marital rape exception" (sans quotes at this point) necessitated by constitutional principles, the discussion involves difficult legal, social and pragmatic concerns. Clear thinking and genuine action need to be taken in the future.
The global shift and constitutional requirements make it inevitable that legislation will change. What the change would be is still a matter for debate, however. It would conform to acceptable standards of human rights here and in international law and to the constitutional laws of fairness. Instead, incremental changes might include actionable guidelines regarding false accusations and the preservation of family unity, while continuing to hold individuals responsible for nonconsensual sexual activity over the course of a marriage. Special courts, trained staff, and victim-inclusive processes would be crucial for the effective adoption of NRFU. Without some change in the ways institutions function and the places held in public perception perceives the problem, reforming statutes is insufficient.
Lawmakers must concentrate on the relationship between criminal prosecutions and marital disputes, the standard of proof required for a trial, and protecting victims' privacy. It is impossible to overstate the significance of community organizations in this transformation. Campaigning organizations, women's organizations, and legal aid societies should continue to spread the word and provide assistance to victims. Public conversation around marriage, consent, and women's rights has already changed as a result of the discussion. This modification represents what may be the biggest victory in Indian law for women's equality.
V. Conclusion
The marital rape exception sits at the crossroads of law, morality, and social change—a complex issue that calls for clear resolution through careful application of constitutional principles as India moves forward. Important questions about marriage, state authority and equality in a constitutional democracy are waiting for clear answers. The constitutional invalidity of the exception becomes clearer when considering evolving legal principles.
India’s response to this issue will reflect its dedication to gender equality and human rights in the contemporary arena. A nation known for pioneering Non-Violence and Constitutional Governance must now show that Basic Human Dignity cannot be undermined by outdated laws. Ending the marital rape exception is not only legally inevitable but also a constitutional necessity—the only question is WHEN will this change happen and HOW a modern, fair legal system will replace this colonial-era rule.
As the time stays ripe, India and it’s women yearn for an answer to this ‘WHEN’ and ‘HOW’……