Marital Rape Exception In India: Constitutional Validity And Legal Reform Under The Bharatiya Criminal Law Framework
Drishti Kodan, Shoolini University, Solan
ABSTRACT
Marital rape remains one of the most unresolved issues in criminal and constitutional law India till date. Despite significant legislative reform through the enactment of the Bharatiya Nyaya Sanhita, 2023 (BNS), the legal position of marital rape doesn’t change a bit and the provisions remains unchanged. Exception 2 of Section 63 of the BNS, which substantially reproduces the earlier provision contained in Section 375 of Indian Penal Code, 1860, continues to exclude non-consensual sexual intercourse by a husband with his wife. Provided the wife is above 18 years of age, from the definition of rape. This paper critically examines the constitutional validity of the marital rape exception through the framework of Article 14, 15, and 21 of the constitution of India. It argues that the exception fails the test of reasonable classification under Article 14, creating an arbitrary distinction between married and unmarried women, reinforces gender-based discrimination prohibited under Article 15, and violates the fundamental right of dignity, privacy, bodily autonomy, and personal liberty enshrined in Article 21. The paper also analyses the judicial development relating to marital rape, including the Supreme court’s decision in Independent Thought v. Union of India (2017) 10 SCC 800 which read down the exception in respect to wives below 18 years of age, and Joseph shine v. Union of India (2019) 3 SCC 39; AIR 2018 SC 4898, which affirmed that marriage does not extinguish a women’s constitutional identity, autonomy, or dignity. It also shows the continuing tension between legality and morality in the context of marital rape. The paper concludes with specific recommendations for legislative and judicial reform, including the deletion of Exception 2 to Section 63 of the BNS by Parliament, judicial intervention by the Supreme Court in the pending batch of petitions arising from the split verdict in RIT Foundation v. Union of India (Delhi High Court, 2022), and the implementation of awareness and sensitisation measures to ensure effective enforcement of any reform.
