The Supreme Court has posted the marital rape exception challenge for final hearing, while also addressing an interim question: can a husband be prosecuted for rape of his wife before the court decides the constitutional validity of Exception 2 to Section 375 IPC? The bench indicated that prosecution may proceed even pending the constitutional verdict. Exception 2 shields a husband from rape charges unless the wife is under fifteen years of age, a provision challenged under Articles 14, 19, and 21.

Exception 2 to Section 375 IPC (now Exception 2 to Section 63 BNS) exempts a husband from rape prosecution if his wife is above fifteen years of age. The provision originates from Victorian-era common law, specifically Matthew Hale's presumption that a wife gives irrevocable consent to intercourse upon marriage. Constitutionally, the challenge rests on three pillars. First, Article 14 — the classification of married women as a separate class incapable of being raped by their husband is argued to be arbitrary and without intelligible differentia having rational nexus to the object of the law. Second, Article 19(1)(a) and 21 — bodily autonomy, sexual autonomy, and dignity are recognised fundamental rights; the exception overrides a married woman's right to say no, violating her personhood. Third, Article 21 jurisprudence post-Puttaswamy (2017) treats privacy, including decisional and bodily privacy, as a fundamental right. The Delhi High Court had delivered a split verdict in 2022 — Justice Rajiv Shakdher held the exception unconstitutional; Justice C. Hari Shankar upheld it. The matter then went to the Supreme Court. The procedural question now settled — prosecution can proceed even before the constitutional validity is finally decided — is itself significant because it prevents the exception from functioning as a litigation shield. The BNS 2023 retains the exception, making the SC ruling prospectively critical for the new code as well.