Marriage, Consent And The Marital Rape Exception: A Constitutional Reassessment Under Indian Law
Tanmay Nilesh Kalal, BA.LL.B., Manikchand Pahade Law College, Chh. Sambhajinagar, Maharashtra, India.
ABSTRACT
Indian criminal law continues to contain a marital rape exception in Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023 (BNS), under which sexual intercourse or sexual acts by a man with his own wife, where the wife is not under eighteen years of age, do not constitute rape under that provision. This raises the issue of the tension between the statutory recognition of consent and the different treatment of non-consensual sexual acts within marriages. The anomaly is highlighted by section 67, which punishes a husband for having sex while living separately without her consent. Recently in September 2026, a three-judges Supreme Court bench of (CJI Surya Kant, JJ. Bagchi and Mohana) revived the constitutional challenges to this exception and listed it for final hearing. This article critically examines whether the exception can survive Article 14,15 and 21 scrutiny. Marriage may have special legal status, but it cannot override an individual autonomy over her body. At the same time concerns about legal process, misuse and social impact highlight the need for carefull safeguards. Ultimately, the article contends that marriage should not be treated as irrevocable consent; the present exception is constitutionally vulnerable, and any reforms must include appropriate procedural safeguards.
Keywords: Marital Rape, Consent, Bharatiya Nyaya Sanhita, Constitutional Validity, Bodily Autonomy, Gender Justice.
