Supreme Court to examine marital rape exception under IPC, BNS
The Supreme Court agreed to examine the constitutional validity of the "marital rape exception" — the provision under Section 375 of the Indian Penal Code (IPC), and its corresponding provision under Section 63 of the Bharatiya Nyaya Sanhita (BNS), which excludes non-consensual sexual acts by a man with his own wife from the definition of rape.
The Court will also hear an appeal against a March 2022 Karnataka High Court judgment that had refused to quash rape charges framed against a husband accused of sexually assaulting his wife.
The petitions seek a "reading down" of the exception so that non-consensual sexual acts within marriage fall within the offence of rape.
The Union government's counter-affidavit has already been filed; the Court has indicated the case raises a significant question of constitutional law — whether a penal provision can be judicially reinterpreted to permit prosecution for conduct the provision expressly excludes. Detailed arguments will follow on a date to be fixed.
The Marital Rape Exception — Section 375 IPC / Section 63 BNS
Section 375 IPC defines rape but its Exception 2 states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, do not constitute rape. The Bharatiya Nyaya Sanhita, 2023 (in force since July 1, 2024) re-enacts the rape provision at Section 63, carrying forward the identical exception for wives above 18 years. This "exception" effectively creates immunity for a husband from a rape charge involving his own adult wife, though other offences (such as cruelty under Section 498A IPC / corresponding BNS provision, or hurt) may still apply.
Key Details
- Exception 2 to Section 375 IPC applies only where the wife is 18 years or older; below that age it does not apply following judicial intervention (see below).
- The BNS, 2023 replaced the IPC effective July 1, 2024, and retained the same marital exception structure under Section 63.
- The exception does not exempt a husband living separately under a decree of judicial separation — this scenario is treated as rape under a distinct provision.
The present case directly challenges whether this exception survives constitutional scrutiny for adult wives, an issue the Supreme Court had earlier left open.
Independent Thought v. Union of India (2017)
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 constitutes rape, striking down the earlier "15-year" threshold in the exception as violative of Article 14 (equality before law) because it created an unreasonable classification between married and unmarried girls of the same age group. The Court expressly clarified it was not deciding the question of marital rape of adult (18+) wives, leaving that issue open — the very issue now before the Court.
Key Details
- Decided October 11, 2017, by a two-judge bench.
- Read down the age threshold in Exception 2 to Section 375 IPC from 15 to 18 years, aligning it with the Protection of Children from Sexual Offences (POCSO) Act, 2012 age of consent.
- Ground of invalidation: Article 14 (arbitrary classification), not Article 21.
This 2017 verdict is the direct precedent and the reason the pending case is confined to the question of adult marital rape.
RIT Foundation v. Union of India — Delhi High Court Split Verdict (2022)
In May 2022, a Delhi High Court division bench (Justices Rajiv Shakdher and C. Hari Shankar) delivered a split verdict on petitions challenging the marital rape exception under Section 375 IPC and Section 376B IPC. One judge held the exception unconstitutional as violative of Articles 14, 15, 19 and 21 (equality, non-discrimination, freedom, and personal liberty/dignity), while the other upheld it, holding that Parliament — not the judiciary — should decide the policy question. Because of the split, the matter was referred onward and is now before the Supreme Court.
Key Details
- Split bench: Justice Rajiv Shakdher struck down the exception; Justice C. Hari Shankar upheld it.
- Grounds argued by petitioners: violation of the right to equality (Article 14), non-discrimination (Article 15), and the right to life and personal liberty/dignity (Article 21).
- The Delhi HC verdict was appealed to the Supreme Court, which is now the pending case referenced in this news.
The current Supreme Court proceeding is the appellate continuation of the unresolved Delhi HC split verdict, making this the first time the apex court will substantively rule on marital rape for adult wives.
- Exception 2 to Section 375 IPC (and Section 63 BNS) exempts non-consensual sex within marriage from being classified as rape, when the wife is 18 years or older.
- Independent Thought v. Union of India (2017) raised the "minor wife" exemption threshold from 15 to 18 years, aligning it with POCSO's age of consent.
- RIT Foundation v. Union of India (Delhi HC, May 2022) produced a split verdict — one judge for striking down the exception, one for upholding it — leading to the present Supreme Court appeal.
- The Bharatiya Nyaya Sanhita, 2023 replaced the IPC with effect from July 1, 2024, and Section 63 BNS is the current statutory equivalent of Section 375 IPC.