India rewrote its entire criminal code in 2024. Sedition was reworked, new offences like mob lynching and organised crime were added, and the language of the Indian Penal Code was modernised across the board. But one provision made the journey from the colonial-era IPC to the Bharatiya Nyaya Sanhita (BNS) almost untouched: the marital rape exception. It sits quietly inside Section 63 BNS, Exception 2 — the very section that defines rape — and it says that a husband cannot be prosecuted for rape of his own wife, so long as she is 18 or older. This piece looks at what that exception actually says, why it has survived every round of reform so far, and where the legal and moral case against it currently stands.
What Exception 2 Actually Says
Section 63 BNS defines rape in the same way Section 375 IPC always did — sexual intercourse or specified acts of penetration committed without valid consent, or under one of several circumstances (fear of injury, misconception of fact, and so on) that the law refuses to treat as consent. Exception 2 then carves out a specific category of act from this definition entirely:
Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.
In plain terms: everything Section 63 defines as rape when done to any other woman is, by law, not rape when done by a husband to his wife — as long as she is an adult. The only textual change from the old IPC provision is the age threshold, which used to say 15. That change came about because the Supreme Court, in Independent Thought v. Union of India (2017), read the age up to 18 to bring it in line with the POCSO Act's protections for minors — and the BNS simply wrote that judicially-mandated figure into the statute. Below 18, the exception doesn't apply, and a husband can be prosecuted. Above 18, it does, and he generally cannot — no matter what actually happened.
Where This Comes From
The marital rape exception isn't a modern legislative choice so much as an inherited one. It traces back to the doctrine of coverture in English common law — the idea that a married woman's legal identity merged into her husband's, and that by marrying, a woman gave irrevocable, ongoing consent to sex with her husband. Macaulay's IPC, drafted in the 1830s and enacted in 1860, imported this assumption directly into Indian criminal law. In the nearly two centuries since, Parliament has revisited rape law multiple times — most significantly after the 2012 Delhi gang rape, when the Justice Verma Committee explicitly recommended removing the exception — and each time, the exception has been left standing. The BNS, billed as a ground-up "decolonisation" of Indian criminal law, was the most recent opportunity to finally break from this colonial-era assumption. It didn't.
Why Critics Say the Exception Fails on Its Own Terms
The core objection isn't really about whether non-consensual sex within marriage happens — most participants in the debate, including the Union government, now accept that it does. The objection is that the law treats the same act completely differently depending on the relationship between the parties:
- It creates two classes of women. A woman who is raped by a stranger, an acquaintance, or a partner she isn't married to has the full protection of Section 63. The moment she is a wife, the same act — by law — is not rape at all. Critics argue this treats marital status as a licence that overrides a woman's bodily autonomy, which sits uneasily with Articles 14 (equality), 15 (non-discrimination), and 21 (life and personal liberty) of the Constitution.
- It relies on a fiction of permanent, standing consent. The exception effectively treats marriage as if it were itself a form of blanket, irrevocable consent to sex — an idea Indian courts have rejected in almost every other context. The Supreme Court has, for instance, held that even a sex worker retains the right to refuse sex; the marital rape exception denies the same right to a wife.
- The "protecting the institution of marriage" argument cuts both ways. Defenders of the exception argue that criminalising marital rape would destabilise marriages and invite misuse of the law. Critics respond that this argument assumes the institution is worth protecting at the cost of a woman's consent — and note that the law has no difficulty criminalising other forms of spousal violence (cruelty, dowry harassment) without being accused of "destabilising marriage."
- The available alternatives are weaker, not equivalent. The government has pointed to the Protection of Women from Domestic Violence Act, 2005, and cruelty provisions (Section 498A IPC, now Section 85 BNS) as adequate remedies. But these carry far lighter consequences than a rape charge, and don't provide the same recognition of what actually occurred. A cruelty conviction and a rape conviction are not interchangeable, either in stigma, in sentencing, or in what they say about the nature of the harm.
- The lesser offence next door makes the inconsistency obvious. BNS Section 67 (previously Section 376B IPC) already criminalises a husband forcing sex on a wife who is living separately from him — but with a markedly lighter sentence than ordinary rape. If marital status alone were a legitimate basis for treating forced sex differently, it's unclear why separation should change the calculus this much, or why the punishment for the same non-consensual act should shrink simply because a marriage is intact.
The Case for Keeping the Exception
In fairness, the position isn't one-sided, and it deserves to be represented accurately. Those defending the exception generally argue:
- Separation of powers. Parliament has reviewed and re-enacted this exception multiple times, most recently in the BNS itself. Courts, on this view, should be cautious about striking down a provision Parliament has repeatedly chosen to retain, since creating a new criminal offence is traditionally understood as the legislature's job, not the judiciary's.
- Evidentiary and practical concerns. Some argue that sexual relations within an ongoing marriage carry a different evidentiary texture than encounters between strangers, and that a "reasonable expectation of sex" within marriage makes prosecution and proof genuinely harder to manage without inviting misuse.
- Proportionality of consequence, not denial of harm. The Union government's own 2024 affidavit in the Supreme Court is notable here: it did not deny that a husband forcing himself on his wife is a violation of her rights. It argued instead that applying the full weight of rape law — a minimum ten-year sentence — to a marital relationship would be "excessively harsh" and "disproportionate," and that other laws already provide "serious penal consequences" for the underlying conduct.
Whether this is a principled distinction or a way of avoiding the word "rape" for a serious sexual violation is, ultimately, the entire dispute in one sentence.
Where the Legal Challenge Stands Right Now
The exception's constitutionality has been under active litigation for years, and the story so far is one of a case that keeps stalling rather than resolving:
- In 2022, a split verdict from the Delhi High Court in RIT Foundation v. Union of India saw one judge (Justice Rajiv Shakdher) hold the exception unconstitutional, and the other (Justice C. Hari Shankar) hold that removing it was a matter for Parliament, not the courts.
- The matter moved to the Supreme Court, where multiple petitions — including one arising from Hrishikesh Sahoo v. State of Karnataka, where the Karnataka High Court had bluntly stated "rape is rape" — were clubbed together for hearing.
- In October 2024, the Union government filed an affidavit formally opposing the removal of the exception — the first time it had taken this position before the Court, after earlier submissions had been more equivocal.
- Hearings that began under Chief Justice D.Y. Chandrachud were postponed following his retirement, and as of early-to-mid 2026, the matter remains pending before a reconstituted bench, with no verdict date set.
In the meantime, High Courts have gone in different directions when applying the existing law: Karnataka's courts have been openly critical of the exception, while courts in Madhya Pradesh and Chhattisgarh have applied it as written — in one widely discussed 2025 case, upholding an acquittal even where a wife died as a result of the alleged assault, because the underlying act fell within Exception 2's scope.
Why This Still Matters for Anyone Reading Section 63 BNS
If you're studying or practising under the new code, it's worth being precise about what actually changed and what didn't. The BNS did not weaken protections against rape — if anything, related provisions (gang rape consolidation, victim compensation, digital evidence recognition) were strengthened. But Section 63's Exception 2 represents a conscious legislative choice, repeated in 2023, to carry forward a colonial-era assumption about marital consent that has already been rejected in most other legal contexts. Until Parliament amends it or the Supreme Court rules otherwise, a married woman above 18 in India has, as a matter of statute, less legal protection against sexual violence from her husband than she would have against anyone else. That gap — not any drafting error or oversight — is exactly what the ongoing litigation is trying to close.
This blog is for general legal and informational purposes only and does not constitute legal advice. If you or someone you know needs support related to domestic or sexual violence, please reach out to Police Station or Contact Us.