New Delhi: The Supreme Court of India has initiated substantive proceedings to determine the constitutional validity of the marital rape exception, raising foundational questions over whether courts can permit the criminal prosecution of a husband when penal statutes expressly exempt spousal acts from the definition of rape. A three-judge bench headed by Chief Justice of India Surya Kant, alongside Justices Joymalya Bagchi and V. Mohana, is examining whether Exception 2 to Section 375 of the erstwhile Indian Penal Code (IPC) and its successor provision, Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita (BNS), withstand constitutional scrutiny. During preliminary arguments, the bench underscored the critical dilemma of criminal jurisprudence: while involuntary intercourse within marriage undeniably harms the victim, the judiciary must evaluate whether penal courts possess the authority to order prosecution for conduct that Parliament has specifically excluded from the penal code.
The dispute before the top court consolidates multiple appeals and public interest litigations challenging contradictory high court rulings delivered in 2022. In March 2022, the Karnataka High Court declined to quash an FIR charging a husband with rape, holding that no statutory exception can become an absolute license to violate a woman’s bodily integrity and declaring that an assault remains an assault irrespective of the perpetrator’s marital status. Conversely, in May 2022, the Delhi High Court delivered a split verdict, where Justice Rajiv Shakdher struck down the exception as violative of constitutional guarantees of equality and personal dignity, while Justice C. Hari Shankar upheld it as a valid classification intended to protect the institution of marriage. These opposing interpretations, coupled with fresh petitions targeting the BNS framework, prompted the apex court to establish a dedicated hearing schedule to resolve the matter conclusively.
The statutory core of the controversy centers on Exception 2 to Section 375 of the IPC, which originally stated that sexual intercourse or sexual acts by a man with his own wife, provided she was not under fifteen years of age, did not constitute rape. Although the 2013 criminal law amendments broadened the scope of prohibited sexual acts following the Justice J.S. Verma Committee recommendations, Parliament chose not to remove the spousal exemption despite the committee’s advice. When the Bharatiya Nyaya Sanhita replaced the colonial-era penal code, lawmakers retained the exception under Section 63, altering the language primarily to raise the age threshold of the wife to 18 years to align with earlier judicial rulings protecting minors. Consequently, adult wives remain excluded from the standard definition of rape under subsisting marital ties, leaving legal remedies largely confined to provisions covering matrimonial cruelty, domestic violence, or assault.
The Union Government has persistently defended the retention of the statutory exception, submitting counter-affidavits warning that judicial invalidation of the provision would severely disrupt conjugal relations and destabilize the legal foundation of marriage across the country. By contrast, petitioners and human rights advocates contend that the exemption creates an impermissible distinction between married and unmarried women, infringing upon fundamental rights to bodily autonomy, privacy, and equality under Articles 14 and 21 of the Constitution. As the Supreme Court prepares to hear final arguments, India stands among a shrinking group of jurisdictions that maintain legal immunity for spousal rape, placing the apex court at the intersection of evolving constitutional rights, penal legality, and legislative prerogative.
