The Absent Statute: Marital Rape, Legislative Silence, And The Constitutional Cost Of Parliamentary Inaction
- IJLLR Journal
- Jul 5
- 1 min read
Aniket Gautam, University School of Law & Legal Studies, GGSIPU - New Delhi
ABSTRACT
This article examines the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code, now reproduced in Section 63 of the Bharatiya Nyaya Sanhita, 2023, which exempts non-consensual intercourse by a husband with his wife from the definition of rape. Using the IRAC framework, the article argues that the marital rape exception is constitutionally indefensible when tested against Articles 14, 19, and 21 of the Constitution of India, as interpreted through the Supreme Court's expanding jurisprudence on equality, dignity, privacy, and bodily integrity. It traces the exception's survival through successive waves of criminal law reform, including the Criminal Law Amendment Act of 2013 and the Bharatiya Nyaya Sanhita, 2023, and examines why Parliament has persistently declined to act despite recommendations from the Justice Verma Committee, sustained judicial scrutiny, and the weight of comparative constitutional experience from common law jurisdictions. The article contends that legislative inaction in this instance is not a neutral policy position but a deliberate constitutional abdication, one that prioritises institutional and political considerations over the fundamental rights of married women. It further argues that the divided judgment of the Delhi High Court in RIT Foundation v. Union of India (2022) and the matter's subsequent referral to the Supreme Court represent a judicial reckoning that Parliament has deferred but cannot indefinitely avoid. The article concludes that the removal of the marital rape exception is not a question of legislative discretion but of constitutional obligation, and that the longer Parliament delays, the greater the constitutional and human cost of that delay.
