01 Read
What happened
India's Bharatiya Nyaya Sanhita (BNS), which replaced the IPC in 2024, retains the marital rape exception under Section 63, shielding husbands from rape charges if the wife is above fifteen years of age. The Supreme Court is hearing a challenge to this provision, with petitioners arguing it violates Articles 14, 19, and 21. The Delhi High Court had earlier delivered a split verdict in 2022, making Supreme Court resolution essential. No final ruling has been pronounced yet.
02 Understand
Why it matters
The marital rape exception originates from a Victorian-era doctrine — framed by English jurist Matthew Hale in 1736 — that a wife gives irrevocable consent to intercourse upon marriage. India inherited this through Section 375 of the IPC and has now re-enacted it in BNS Section 63. The exception states that sexual intercourse by a man with his own wife, provided she is not under fifteen, is not rape.
The constitutional challenge rests on three pillars. First, Article 14 (equality before law): the exception creates an irrational classification between married and unmarried women — both deserve equal protection of their bodily autonomy, and marital status is not a constitutionally permissible differentia for this purpose. Second, Article 21 (right to life and personal liberty): the Supreme Court in Justice K.S. Puttaswamy v. Union of India (2017) held that the right to privacy includes bodily integrity and sexual autonomy, rights that cannot be suspended by the institution of marriage. Third, Article 19(1)(a) dignity dimensions reinforce that silence or legal incapacity to say 'no' is not consent.
The Delhi High Court in RIT Foundation v. Union of India (2022) produced a split verdict — Justice Rajiv Shakdher held the exception unconstitutional, while Justice C. Hari Shankar upheld it, necessitating Supreme Court intervention. CLAT PG examiners consistently test whether aspirants can identify which constitutional provisions are invoked, the standard of review applied (manifest arbitrariness under Article 14 post-Shayara Bano), and the distinction between a court applying a doctrine versus striking down a statute.
The constitutional challenge rests on three pillars. First, Article 14 (equality before law): the exception creates an irrational classification between married and unmarried women — both deserve equal protection of their bodily autonomy, and marital status is not a constitutionally permissible differentia for this purpose. Second, Article 21 (right to life and personal liberty): the Supreme Court in Justice K.S. Puttaswamy v. Union of India (2017) held that the right to privacy includes bodily integrity and sexual autonomy, rights that cannot be suspended by the institution of marriage. Third, Article 19(1)(a) dignity dimensions reinforce that silence or legal incapacity to say 'no' is not consent.
The Delhi High Court in RIT Foundation v. Union of India (2022) produced a split verdict — Justice Rajiv Shakdher held the exception unconstitutional, while Justice C. Hari Shankar upheld it, necessitating Supreme Court intervention. CLAT PG examiners consistently test whether aspirants can identify which constitutional provisions are invoked, the standard of review applied (manifest arbitrariness under Article 14 post-Shayara Bano), and the distinction between a court applying a doctrine versus striking down a statute.
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