The Supreme Court of India is examining the constitutional validity of India’s marital rape exception, bringing questions of consent, equality, dignity, bodily autonomy and criminal liability into sharp constitutional focus.
The proceedings assume particular significance following the transition from the Indian Penal Code, 1860 (IPC) to the Bharatiya Nyaya Sanhita, 2023 (BNS). While the IPC has been repealed, the BNS continues to contain a marital exception within its provision defining rape.
What Is the Issue?
Under the earlier Section 375, Exception 2 of the IPC, sexual intercourse by a man with his own wife, subject to the statutory age requirement, was excluded from the definition of rape.
The corresponding provision under Section 63 of the BNS continues the marital exception.
The constitutional challenge questions whether excluding non-consensual sexual intercourse within marriage from the offence of rape is compatible with Article 14’s guarantee of equality and Article 21’s protection of life, dignity, privacy and personal liberty.
Supreme Court Raises Key Legal Questions
The Supreme Court proceedings include challenges arising from the 2022 split verdict of the Delhi High Court, along with other proceedings concerning prosecution of husbands for allegedly forcing sexual relations upon their wives.
A significant issue before the Court is whether a husband can be prosecuted for rape when the existing statutory framework expressly contains an exception for marital sexual intercourse.
The Court is consequently examining two interconnected questions:
• Whether the marital rape exception is constitutionally valid; and
• Whether prosecution for rape can proceed while the statutory exception remains in force.
Consent and Bodily Autonomy
At the heart of the constitutional challenge is the proposition that marriage does not amount to permanent or continuing consent to sexual activity.
The issue engages the constitutional principles of bodily integrity and decisional autonomy recognised in cases including Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) and Suchita Srivastava v. Chandigarh Administration (2009).
The broader question is whether marital status can legally alter the protection afforded to an individual’s bodily and sexual autonomy.
Delhi High Court’s Split Decision
The issue reached the Supreme Court following the 2022 split judgment of the Delhi High Court.
Justice Rajiv Shakdher held the marital rape exception unconstitutional, emphasising equality, dignity and bodily autonomy. Justice C. Hari Shankar, however, upheld the exception, stressing legislative competence, the distinctive nature of marriage and judicial restraint.
The conflicting views resulted in the matter proceeding to the Supreme Court for authoritative determination.
Government’s Position
The Union Government has opposed judicial criminalisation of marital rape and has emphasised the role of Parliament in making substantive changes to criminal law.
Arguments concerning the institution of marriage, evidentiary difficulties, potential misuse of criminal provisions and separation of powers are among the broader considerations surrounding the issue.
Why the Case Matters
The proceedings have significance beyond the specific offence of rape. The Supreme Court’s eventual ruling may clarify the constitutional relationship between:
Marriage | Consent | Bodily Autonomy | Dignity | Equality | Criminal Liability
It may also determine the extent to which constitutional courts can invalidate or alter an exception created by Parliament within criminal legislation.
Current Legal Position
Until the Supreme Court delivers its final judgment or the legislature changes the law, the existing statutory framework remains applicable. The final constitutional determination is awaited.