On marital rape, Supreme Court asks if courts can prosecute what State does not define as ‘rape’
The Supreme Court has begun hearing a batch of petitions challenging the constitutional validity of the marital rape exception under Section 375 of the Indian Penal Code and the corresponding provision in the Bharatiya Nyaya Sanhita, 2023
The bench observed that a person subjected to involuntary sexual intercourse within marriage is undoubtedly a victim, but noted that the central legal question is whether the State's criminal law currently defines such an act as "rape"
The Union government's position before the Court is that criminalising marital rape is a matter for Parliament to legislate on, not for judicial determination
Petitioners argue that the exception denies married women equal protection of the law and violates their bodily autonomy and dignity
The matter continues to be heard as part of ongoing constitutional scrutiny of the exception
Exception 2 to Section 375 IPC / Section 63 BNS — the marital rape exception
Section 375 of the Indian Penal Code defined rape but carved out Exception 2, stating that sexual intercourse by a man with his own wife is not rape, provided the wife is not below a specified age. This exception has been retained, with a modification, in Section 63 of the Bharatiya Nyaya Sanhita, 2023, which replaced the IPC from 1 July 2024.
Key Details
- Original Exception 2 to Section 375 IPC set the age threshold at 15 years — sexual intercourse with a wife aged 15 or above was excluded from the definition of rape regardless of consent
- Section 63 of the BNS, 2023 carries forward the same structural exception but raises the age threshold to 18 years, aligning it with the age of majority and the age of consent under the POCSO Act
- The exception is distinct from spousal offences that remain punishable — cruelty under Section 498A IPC / equivalent BNS provision, and domestic violence under the Protection of Women from Domestic Violence Act, 2005 — none of which criminalise non-consensual intercourse itself within marriage
- The current petitions ask the Court to read down or strike the exception to the extent it excludes non-consensual sexual acts within marriage from the offence of rape
The Court's remark that the "State" has not defined such acts as rape refers precisely to this statutory exception — the Bench is examining whether a judicially-recognised harm can be prosecuted as "rape" when the governing statute expressly excludes it from that definition.
Independent Thought v. Union of India (2017) — the precedent on marital rape of a minor wife
In this case the Supreme Court read down Exception 2 to Section 375 IPC to hold that sexual intercourse with a wife between 15 and 18 years of age amounts to rape, closing the gap between the marital rape exception and the age of consent recognised under other child-protection laws.
Key Details
- Decided by the Supreme Court in October 2017, on a writ petition filed under Article 32 by the NGO Independent Thought
- The Court held the earlier 15-year threshold in Exception 2 was inconsistent with the Protection of Children from Sexual Offences (POCSO) Act and the Juvenile Justice Act, both of which treat anyone below 18 as a child
- The judgment was prospective and limited in scope — it addressed only the age anomaly for minor wives, and expressly left open the question of marital rape involving adult wives, which is the issue now before the Court
- The Court grounded its reasoning partly in Article 21 (right to life and personal liberty), holding this includes a woman's right to bodily integrity and dignity
The current batch of petitions seeks to extend the logic of Independent Thought — that the marital exception cannot override a woman's bodily autonomy — to adult wives, the question the 2017 judgment had explicitly not decided.
Article 14 and Article 21 — the constitutional grounds of challenge
Petitioners challenge the marital rape exception primarily on the grounds that it violates Article 14 (equality before law) by creating an unreasonable classification between married and unmarried women who suffer identical non-consensual acts, and Article 21 (right to life and personal liberty), which the Supreme Court has read to include the right to bodily autonomy, privacy and dignity.
The Bench's framing — victimhood is undisputed, but the case turns on whether the "State" (Parliament, through statute) has defined the act as rape — captures this constitutional tension between judicial protection of Article 21 rights and the separation-of-powers limits on courts legislating new criminal offences.
- Exception 2 to Section 375 IPC (pre-BNS): marital rape exception age threshold — 15 years
- Section 63, Bharatiya Nyaya Sanhita, 2023 (in force from 1 July 2024): marital rape exception age threshold raised to 18 years
- Independent Thought v. Union of India: decided October 2017, read down the marital exception for wives aged 15–18
- K.S. Puttaswamy v. Union of India (2017): nine-judge bench recognised privacy, including bodily autonomy, as a fundamental right under Article 21
- Age of consent under POCSO Act, 2012: 18 years