Section 375 IPC vs. Section 63 BNS: One Change, Same Exception<\/h2>\n\n\n\n Section 375 IPC defined rape but contained an exception for sexual intercourse by a man with his wife if the wife is not below fifteen years of age. The IPC was repealed by the Bharatiya Nyaya Sanhita, 2023. The BNS made one change to the existing provision \u2014 it increased the age of the wife in the exception from fifteen years to eighteen years. This means that sexual intercourse without consent with a wife who is under eighteen years of age is rape under the BNS.<\/p>\n\n\n\n
For adult married women \u2014 wives aged eighteen and above \u2014 nothing changed. The marital rape exception applies to them under Section 63 BNS exactly as it applied under Section 375 IPC. The immunity is complete: a husband cannot be prosecuted for rape of his adult wife regardless of force, resistance, injury, or any other evidence of non-consent.<\/p>\n\n\n\n
The transition from the IPC to the BNS was the single most significant overhaul of Indian criminal law since 1860. Parliament had the opportunity to remove the exception. It did not. The retention of Exception 2 in the BNS was a deliberate legislative choice made in full awareness of the ongoing Supreme Court challenge, the Justice Verma Committee’s 2013 recommendation for removal, and the sustained advocacy of women’s rights organisations across India.<\/p>\n\n\n\n
The Origin: Matthew Hale and the Colonial Inheritance<\/h2>\n\n\n\n Exception 2 to Section 375 IPC was not the product of Indian legislative deliberation. It was an import \u2014 a codification of a legal doctrine articulated by Sir Matthew Hale, Lord Chief Justice of England, in his posthumously published Historia Placitorum Coronae (1736). Hale wrote that a husband could not be guilty of rape upon his wife because, by their matrimonial consent and contract, the wife had given up herself in this kind unto her husband, which she could not retract.<\/p>\n\n\n\n
This was never enacted as statute in England. It was judicial doctrine \u2014 treated as settled common law. When Lord Macaulay’s Law Commission drafted the Indian Penal Code and it was enacted in 1860, the doctrine was absorbed and explicitly codified as Exception 2. India did not independently reason its way to this position. It inherited it from a colonial legal system that itself had not enacted it as statute.<\/p>\n\n\n\n
The deepest irony in the current Indian situation is this: England abolished the marital rape exception in 1991, following the House of Lords ruling in R v. R, which called the Hale doctrine “a fiction of law which has no place in the modern law.” India \u2014 which did not independently develop the doctrine \u2014 carried it forward into a new criminal code in 2023.<\/p>\n\n\n\n
The 2013 Reforms: Expansion Without Removal<\/h2>\n\n\n\n The Criminal Law Amendment Act, 2013 was the most significant reform of Indian rape law in the post-independence era. It followed the report of the Justice J.S. Verma Committee, constituted in the aftermath of the December 2012 Delhi gang rape and tasked with recommending reforms to the law on sexual offences.<\/p>\n\n\n\n
The 2013 amendments to Section 375 IPC were sweeping:<\/p>\n\n\n\n
\ud83d\udccb The definition of rape was expanded far beyond penile-vaginal penetration to include oral rape, object penetration, and other forms of sexual assault \ud83d\udccb The concept of consent was codified \u2014 with a clear definition and multiple specified circumstances under which consent is vitiated \ud83d\udccb Aggravated rape offences were introduced \u2014 for gang rape, rape by persons in authority, rape of women with disabilities, and rape of women in custody \ud83d\udccb Minimum sentences were raised significantly \ud83d\udccb The age of consent was standardised at eighteen years<\/p>\n\n\n\n
The Justice Verma Committee had specifically and unambiguously recommended the removal of the marital rape exception. The Committee’s report stated that marriage cannot be treated as a licence for sexual violence, that the exception was a relic of colonial doctrine with no place in a constitutional democracy, and that its removal was essential to the integrity of the reforms being recommended.<\/p>\n\n\n\n
The government did not accept this recommendation. Exception 2 survived the 2013 amendments without modification. The age threshold of fifteen years was retained. The most comprehensive reform of Indian rape law in decades left the marital rape exception entirely untouched.<\/p>\n\n\n\n
Independent Thought v. Union of India (2017): Partial Judicial Reform<\/h2>\n\n\n\n The first and only judicial modification of Exception 2 to Section 375 IPC came in October 2017, when a two-judge bench of the Supreme Court decided Independent Thought v. Union of India \u2014 a petition brought by the NGO Independent Thought challenging the exception’s application to wives below eighteen years of age.<\/p>\n\n\n\n
The Supreme Court held that Exception 2 to Section 375 IPC, insofar as it related to a girl child below eighteen years, was liable to be struck down on the grounds that it was arbitrary, capricious, whimsical, and violative of the rights of the girl child \u2014 not fair, just, and reasonable \u2014 and therefore violative of Articles 14, 15, and 21 of the Constitution of India. It was further held discriminatory and violative of Article 14, and inconsistent with the provisions of POCSO, 2012, which must prevail.<\/p>\n\n\n\n
The court’s reasoning rested on the contradiction between the exception’s minimum age of fifteen and the comprehensive framework of other legislation \u2014 particularly POCSO, 2012, which treats any person below eighteen as a child entitled to protection from all forms of sexual abuse, including within marriage. The court held that a girl could not be simultaneously treated as a child for all other legal purposes while being denied the protection of rape law within marriage.<\/p>\n\n\n\n
The Deliberate Limit of the 2017 Ruling<\/h3>\n\n\n\n The Supreme Court in Independent Thought was explicit and repeated \u2014 often \u2014 that it was not ruling on the exception as applied to adult wives. The bench specifically declined to address whether Exception 2 was constitutional for wives aged eighteen and above. That question, the court emphasised, was not before it, required separate consideration, and would need to be addressed in appropriate proceedings.<\/p>\n\n\n\n
The 2017 ruling was a surgical intervention limited to child wives. It was not an endorsement of the exception for adult women. It left the core constitutional question \u2014 the one that has generated the most debate and the most litigation \u2014 entirely unresolved. The judgement, though the bench had said time and again that it did not want to delve into the issue of marital rape, inevitably opened a window for law on marital rape.<\/p>\n\n\n\n
The Constitutional Challenge: What the Petitioners Argue<\/h2>\n\n\n\n The petitions challenging Exception 2 that are currently before the Supreme Court \u2014 originating from the Karnataka High Court proceedings in Hrishikesh Sahoo v. State of Karnataka, fresh petitions filed under Article 32, and appeals from various High Courts \u2014 argue that the exception violates four fundamental rights:<\/p>\n\n\n\n
Article 14: The Equality Argument<\/h3>\n\n\n\n Exception 2’s distinction between married and unmarried women violates Article 14 insofar as the classification has no rational relation to the underlying purpose of the statute. The Supreme Court has held that any classification under Article 14 is subject to a reasonableness test that can be passed only if the classification has some rational nexus to the objective that the act seeks to achieve. But Exception 2 frustrates the purpose of Section 375 \u2014 to protect women and punish those who engage in rape. Exempting husbands from punishment is entirely contradictory to that objective. The consequences of rape are the same whether a woman is married or unmarried. Moreover, married women may actually find it more difficult to escape abusive conditions at home because they are legally and financially tied to their husbands.<\/p>\n\n\n\n
Article 15: The Non-Discrimination Argument<\/h3>\n\n\n\n Article 15 prohibits discrimination on the grounds of sex. The marital rape exception discriminates between women on the basis of marital status \u2014 an attribute that is inextricably linked to sex. A woman loses the protection of rape law the moment she marries. This differential treatment, the petitioners argue, constitutes unconstitutional discrimination on grounds of both sex and marital status.<\/p>\n\n\n\n
Article 19: The Autonomy Argument<\/h3>\n\n\n\n The right to bodily autonomy \u2014 the right to say no to sexual intercourse \u2014 is part of a woman’s freedom under Article 19. The exception renders this right legally meaningless within marriage. A married woman’s refusal has no legal force under rape law. The exception therefore directly abridges the freedom that Article 19 protects.<\/p>\n\n\n\n
Article 21: The Dignity and Bodily Integrity Argument<\/h3>\n\n\n\n The Supreme Court has, through decades of jurisprudence \u2014 from Francis Coralie Mullin to Puttaswamy \u2014 established that the right to life under Article 21 encompasses the right to live with dignity, the right to bodily integrity, and the right to personal autonomy. Non-consensual sexual intercourse violates each of these dimensions. The exception, by permitting such intercourse within marriage without criminal consequence, directly contravenes Article 21 as the Supreme Court has interpreted it.<\/p>\n\n\n\n
The Government’s Position: Defer to Parliament<\/h2>\n\n\n\n The government submitted a 49-page affidavit before the Supreme Court stating that marriage is a relationship of a “different class” and has an “entire ecosystem” of laws, rights, and obligations. It stated that criminalising marital rape may seriously impact the conjugal relationship and may lead to serious disturbances in the institution of marriage. The affidavit also states that including marital rape under anti-rape laws would be “excessively harsh” and “disproportionate,” and adds that existing laws dealing with domestic violence, sexual harassment, and assault already protect a married woman’s rights.<\/p>\n\n\n\n
The Supreme Court bench sought views of the petitioners on the government’s contention that making such acts punishable would severely impact the conjugal relationship and cause serious disturbances in the institution of marriage.<\/p>\n\n\n\n
The government’s position \u2014 that criminalising marital rape is a matter for Parliament, not the courts \u2014 reflects the executive’s consistent stance since 2013: this is a policy question on which the legislature, not the judiciary, should act. The BNS’s retention of the exception is the most concrete expression of that position.<\/p>\n\n\n\n
The Supreme Court: Proceedings and Current Status<\/h2>\n\n\n\n By October 2024, a three-judge bench began hearing the batch of petitions challenging Exception 2 in the IPC and its BNS equivalent. Hearings were deferred beyond the Chief Justice’s retirement, and the matter remains listed before a new bench.<\/p>\n\n\n\n
The Supreme Court has repeatedly delayed the hearing, and as of 2026, it has yet to hold a decisive hearing on marital rape.<\/p>\n\n\n\n
Although the Court has not yet delivered a final judgment, the detailed hearings show that the issue will remain central to India’s legal discussion throughout 2025 and possibly even into 2026. Legal scholars and commentators have observed that there is a growing constitutional shift toward recognising consent within marriage as a legal necessity.<\/p>\n\n\n\n
The reconstituted bench \u2014 hearing a matter of profound constitutional significance \u2014 has not yet announced a hearing schedule. For the millions of married women in India who live under the exception’s protection of their husbands, this delay has real and immediate consequences.<\/p>\n\n\n\n
Conflicting High Court Rulings: Different Laws in Different States<\/h2>\n\n\n\n In the absence of a Supreme Court verdict, India’s High Courts have produced a patchwork of conflicting interpretations. The legal position that applies to a married woman who is raped by her husband depends significantly on which state she lives in.<\/p>\n\n\n\n
Karnataka High Court: The Exception Is Regressive<\/h3>\n\n\n\n In Hrishikesh Sahoo v. State of Karnataka, Justice M. Nagaprasanna rejected the husband’s plea to have rape charges dropped, relying on the Justice J.S. Verma Committee report which had recommended deleting the marital rape exception, and held the exception was regressive. The Karnataka High Court held that “rape is rape” \u2014 the marital relationship does not transform a non-consensual sexual act into a lawful one. The husband was allowed to face trial. The Supreme Court subsequently stayed this order.<\/p>\n\n\n\n
Madhya Pradesh High Court: Forced Sex in Marriage Is Not Rape<\/h3>\n\n\n\n The Madhya Pradesh High Court has taken the diametrically opposite position. In 2024, it held that forced sexual intercourse within a subsisting marriage is not an offence under rape law. The Madhya Pradesh High Court ruled that unnatural sex with a wife is not rape and that a wife’s consent is irrelevant in such matters. In a 2026 ruling, the court went further \u2014 reframing forced unnatural sex within marriage as cruelty under Section 498A IPC rather than rape, and quashing the rape charges entirely.<\/p>\n\n\n\n
Chhattisgarh High Court: Exception Covers Even Death of Wife<\/h3>\n\n\n\n The most stark and widely criticised High Court ruling came from Chhattisgarh in February 2025. A man had been convicted by the trial court for raping his wife anally, causing her death. The wife had made a dying declaration before a magistrate, detailing what her husband had done. The Chhattisgarh High Court acquitted the husband \u2014 not for lack of evidence, but because Exception 2 to Section 63 BNS made the act not-rape. Even a dying declaration \u2014 given near-conclusive evidentiary weight under Indian law \u2014 could not overcome the marital exception.<\/p>\n\n\n\n
The Section 377 Dimension: An Unsettled Question<\/h3>\n\n\n\n There is no authoritative Supreme Court ruling conclusively settling whether Section 377 applies within marriage. As a result, the legal position remains uncertain and dependent on jurisdictional interpretations. The marital rape exception under Section 375 IPC cannot, by implication, be extended to Section 377 IPC \u2014 each provision operates within its own statutory boundaries, and exceptions cannot be judicially transplanted across offences. Until Parliament clarifies the law or the Supreme Court settles the issue, conflicting interpretations will persist \u2014 leaving fundamental questions of consent, equality, and dignity unresolved within marriage.<\/p>\n\n\n\n
The Section 376B Anomaly: Separated Wives Have More Rights<\/h2>\n\n\n\n One of the most revealing internal contradictions of the marital rape exception framework is Section 376B IPC (Section 67 BNS) \u2014 the provision that criminalises non-consensual sexual intercourse with a wife living under a decree of judicial separation.<\/p>\n\n\n\n
Under this provision, once a court formally recognises the breakdown of a marriage through a decree of judicial separation, the husband’s immunity from rape prosecution disappears. He can be prosecuted for sexual intercourse with his wife without her consent \u2014 punishable by two to seven years’ imprisonment.<\/p>\n\n\n\n
The logical consequence is jarring: a wife who has obtained a decree of judicial separation has more legal protection against sexual violence from her husband than a wife living in a cohabiting marriage. The law recognises that a husband can rape his wife after separation \u2014 but not before. Her right to refuse sexual intercourse accrues, in law, only once a court has formally acknowledged that the marriage has broken down.<\/p>\n\n\n\n
As petitioners before the Supreme Court pointed out, Section 67 of the BNS penalises sexual acts by a husband who is separated from his wife \u2014 therefore rape within the context of marriage is already recognised by the law. Striking down the exception would amount to striking down a legal fiction, not the creation of a new offence.<\/p>\n\n\n\n
This argument \u2014 that the exception is a legal fiction that already contradicts the internal logic of the statute \u2014 is among the most powerful deployed by petitioners before the Supreme Court.<\/p>\n\n\n\n
The Marital Rape Bill, 2025: Legislative Movement<\/h2>\n\n\n\n On December 5, 2025, Shashi Tharoor introduced a bill to delete the marital rape exception under the BNS. The bill emphasised “only yes means yes” and reaffirmed that marriage cannot negate consent.<\/p>\n\n\n\n
The Marital Rape Bill, 2025, introduced by Dr. Shashi Tharoor, seeks to correct this imbalance by amending the BNS to include non-consensual sexual acts within marriage under the definition of rape, prescribing punishments ranging from ten years to life imprisonment, while incorporating procedural safeguards to prevent misuse.<\/p>\n\n\n\n
As a private member’s bill, it does not carry government backing and faces significant obstacles to becoming law. Parliament has not enacted the change \u2014 it sits in the pipeline. But the bill’s introduction is itself significant: it is the first time a formal legislative proposal to criminalise marital rape has been placed before the Indian Parliament, and it signals that the reform agenda is moving \u2014 however slowly \u2014 from courtrooms to the legislature.<\/p>\n\n\n\n
What Exception 2 Means in Practice: The Concrete Realities<\/h2>\n\n\n\n Understanding the marital rape exception requires moving beyond legal abstraction to examine what it means in the daily experience of married women:<\/p>\n\n\n\n
A Wife’s Refusal Has No Legal Force<\/h3>\n\n\n\n A married woman’s refusal to have sexual intercourse with her husband carries no legal weight under rape law. She may say no. She may physically resist. Her husband may proceed regardless. The resulting act is not rape. Her consent \u2014 or lack of it \u2014 is legally irrelevant to whether a rape has occurred.<\/p>\n\n\n\n
Evidence of Force Does Not Establish Rape<\/h3>\n\n\n\n In a rape prosecution against a stranger, evidence of force, injury, or resistance is central to establishing the offence. Where the accused is the husband and the wife is an adult, no amount of evidence of force can sustain a rape charge \u2014 the marital relationship itself bars prosecution. Evidence that would secure a life sentence if the parties were strangers is legally beside the point when they are spouses.<\/p>\n\n\n\n
The Marriage Certificate Functions as a Legal Shield<\/h3>\n\n\n\n A man who rapes an unmarried woman commits one of the most serious offences in Indian criminal law \u2014 carrying a minimum sentence of ten years and potentially life imprisonment. The same man, committing the identical act against his wife, commits no rape. The marriage certificate is a legal shield against prosecution under the most serious provisions of Indian sexual offence law.<\/p>\n\n\n\n
Statistical Reality: One in Three Married Women<\/h3>\n\n\n\n A family health survey found that nearly one in three women in India suffered marital sexual and physical violence. These women live under a legal framework that does not recognise what they have experienced as rape. The gap between the lived reality of millions of married women and the legal characterisation of their experience is the most fundamental indictment of the marital rape exception.<\/p>\n\n\n\n
Protections That Do Exist: What Married Women Can Access<\/h2>\n\n\n\n While Section 375 IPC and Section 63 BNS provide no remedy under rape law for adult wives, several other legal frameworks offer partial \u2014 though incomplete \u2014 protection:<\/p>\n\n\n\n
Protection of Women from Domestic Violence Act, 2005<\/h3>\n\n\n\n \ud83d\udccb Defines domestic violence to include sexual abuse \u2014 any conduct of a sexual nature that abuses, humiliates, degrades, or violates the dignity of the wife \ud83d\udccb A wife can obtain protection orders, residence orders, and monetary relief \ud83d\udccb Relief is civil in nature \u2014 the husband faces no criminal prosecution for rape, but the wife can obtain legal protection and financial support through the court \ud83d\udccb Violation of a protection order is itself a criminal offence<\/p>\n\n\n\n
Section 498A IPC \/ Section 85 BNS: Cruelty by Husband<\/h3>\n\n\n\n \ud83d\udccb Criminalises cruelty by a husband toward his wife \u2014 including conduct causing grave injury to the wife’s physical or mental health \ud83d\udccb Repeated forced sexual intercourse may constitute cruelty if it causes the requisite harm \ud83d\udccb A criminal provision carrying up to three years’ imprisonment \u2014 used by courts where rape charges are not available<\/p>\n\n\n\n
Divorce on Ground of Cruelty<\/h3>\n\n\n\n \ud83d\udccb Forced sexual intercourse within marriage, though not prosecutable as rape, can constitute cruelty \u2014 a ground for divorce under Section 13 of the Hindu Marriage Act \ud83d\udccb Multiple courts have recognised that sexual violence within marriage satisfies the cruelty threshold required for a contested divorce petition \ud83d\udccb The wife may seek maintenance, stridhan recovery, and custody of children as part of the proceedings<\/p>\n\n\n\n
Section 376B IPC \/ Section 67 BNS<\/h3>\n\n\n\n \ud83d\udccb Where the parties are judicially separated, non-consensual sexual intercourse by the husband is a criminal offence carrying two to seven years’ imprisonment \ud83d\udccb The marital rape exception does not apply once judicial separation has been granted \u2014 the husband’s immunity ends with the decree<\/p>\n\n\n\n
The International Comparison: India Among a Shrinking Minority<\/h2>\n\n\n\n According to Amnesty International data, 77 out of 185 countries (42%) criminalise marital rape through legislation. Many countries, along with India, allow a rapist to avoid prosecution by virtue of marriage.<\/p>\n\n\n\n
The countries that have criminalised marital rape include the United Kingdom (1991), the United States (all fifty states, by 1993), Canada, Australia, South Africa, Nepal, and virtually all of Europe. The countries that retain the exception are concentrated in South Asia, parts of sub-Saharan Africa, and the Middle East.<\/p>\n\n\n\n
India sits in the minority \u2014 and that minority is shrinking. The argument that criminalising marital rape will destabilise societies or institutions has been tested and found wanting in every jurisdiction that has enacted the reform. None of the catastrophic consequences predicted by opponents of reform have materialised in the countries that have criminalised marital rape.<\/p>\n\n\n\n
Frequently Asked Questions<\/h2>\n\n\n\n What is Section 375 IPC and is it still in force?<\/strong><\/p>\n\n\n\n Section 375 IPC was the Indian Penal Code’s provision defining rape. It was repealed on July 1, 2024, when the Bharatiya Nyaya Sanhita (BNS), 2023 came into force. Its successor is Section 63 BNS, which retains the marital rape exception with the minimum wife’s age raised from fifteen to eighteen years.<\/p>\n\n\n\n
What exactly does the marital rape exception say?<\/strong> <\/p>\n\n\n\nException 2 to Section 375 IPC stated: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” Under the BNS (Section 63), the age has been raised to eighteen. The effect is the same: a husband cannot be prosecuted for rape of his adult wife.<\/p>\n\n\n\n
Did the 2013 Criminal Law Amendment Act remove the exception?<\/strong> <\/p>\n\n\n\nNo. Despite the Justice Verma Committee recommending its removal, the 2013 amendments expanded the definition of rape in many ways but left Exception 2 untouched. The minimum age of fifteen was retained and the exception continued to apply to adult wives.<\/p>\n\n\n\n
What did the Supreme Court decide in Independent Thought v. Union of India (2017)?<\/strong><\/p>\n\n\n\n The Supreme Court struck down the exception as applied to wives below eighteen years of age \u2014 holding it unconstitutional for being arbitrary and inconsistent with POCSO, 2012. The court explicitly declined to rule on the exception as applied to adult wives, leaving that question for separate proceedings.<\/p>\n\n\n\n
Where does the Supreme Court challenge stand in 2026?<\/strong><\/p>\n\n\n\n The challenge is pending before a reconstituted bench of the Supreme Court. Hearings have repeatedly been deferred. As of May 2026, no verdict date has been fixed and no final judgment has been delivered.<\/p>\n\n\n\n
Can a wife take any legal action if her husband forces her to have sex?<\/strong> <\/p>\n\n\n\nNot under rape law. However, she can file a complaint under the Protection of Women from Domestic Violence Act (which covers sexual abuse as domestic violence), under Section 85 BNS (cruelty by husband), and can cite the conduct as cruelty in a divorce petition. If the parties are judicially separated, Section 67 BNS makes non-consensual intercourse a criminal offence.<\/p>\n\n\n\n
Conclusion<\/h2>\n\n\n\n Section 375 IPC is a provision that no longer exists in statute \u2014 but whose legacy defines India’s legal position on marital rape in 2026. Its Exception 2 \u2014 inherited from a seventeenth-century English doctrine never enacted as statute even in England, codified by colonial legislators in 1860, left intact by the most significant rape law reform in 2013, carried forward into a new criminal code in 2023 \u2014 continues to tell every married woman in India that her husband cannot rape her in the eyes of the law.<\/p>\n\n\n\n
The constitutional arguments against the exception are overwhelming. It has no rational nexus to the purpose of rape law. It discriminates between women on the basis of marital status. It denies married women the bodily autonomy and dignity that Article 21 protects. It is internally inconsistent with a statute that recognises a husband can rape a separated wife. And it has been rejected \u2014 judicially, legislatively, and socially \u2014 by virtually every comparable legal system in the world.<\/p>\n\n\n\n
The question before India’s Supreme Court is not difficult in constitutional terms. It is difficult in institutional and political terms \u2014 because striking down the exception will require the court to override a deliberate legislative choice made as recently as 2023, in a social and political environment where the institution of marriage is treated as a value that competes with the fundamental rights of the women within it.<\/p>\n\n\n\n
When the court rules, it will be among the most significant constitutional judgments on women’s rights in Indian legal history. Until then, the law remains what Section 375 IPC made it, and what Section 63 BNS keeps it: a married woman’s consent is legally irrelevant to whether her husband has committed rape.<\/p>\n\n\n\n
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