The Marital Rape Exemption: A Constitutional Conflict
- IJLLR Journal
- 5 minutes ago
- 1 min read
Saishwari Sahasrabuddhe, Symbiosis Law School, Noida
ABSTRACT
“Marriage cannot be a constitutional license to violate dignity.”
Despite rape being considered a serious criminal offence under Indian law, the continued legal immunity granted to marital rape exposes a troubling paradox within India’s constitutional framework. While the Constitution guarantees equality, dignity, and personal liberty to every individual, the exemption contained under Section 63 of the Bharatiya Nyay Sanhita, 2023, carried forward from the Indian Penal Code, 1860, places married women beyond the protection of criminal law. This article analyses the constitutionality of the marital rape exemption and questions whether the preservation of marriage as a legal institution can justify the denial of women’s bodily autonomy and fundamental rights. Through a doctrinal and comparative analysis of constitutional provisions, judicial precedents, and international legal standards, the study highlights how this exemption conflicts with Articles 14, 19, and 21 of the Constitution. It argues that the continued retention of the marital rape exemption reflects the persistence of colonial and patriarchal assumptions within India’s criminal justice system. The article ultimately contends that criminalising marital rape is not merely a legislative reform but a constitutional necessity to ensure that marriage does not operate as a shield for violence, and that constitutional promises of justice and dignity are meaningfully realised for all women.
