Marital Rape Exception: The Legal Debate Still Before the Courts

Few questions in Indian criminal law remain as genuinely unresolved and contested as whether a husband can be criminally prosecuted for rape within marriage. This article explains the legal history of the exception, the 2022 split court verdict that brought it to national attention, and its still-pending status before the Supreme Court.

What the Marital Rape Exception Actually Says

Under the Indian Penal Code’s Section 375, which historically defined rape, an exception specifically excluded sexual acts by a husband with his wife, provided the wife was above a statutory minimum age, from the definition of rape altogether, meaning a husband could not be criminally prosecuted for rape against his own wife in circumstances that would constitute rape between any other two people, a distinct legal carve-out that has existed in various forms since the law’s colonial-era origins.

The 2022 Delhi High Court Split Verdict

This exception’s constitutional validity was directly tested in RIT Foundation v. Union of India, decided by the Delhi High Court in May 2022. The two-judge bench split directly on the question: Justice Rajiv Shakdher held the marital rape exception unconstitutional, finding it violated married women’s fundamental rights to equality and bodily autonomy, while Justice C. Hari Shankar took the opposing view, upholding the exception and citing, according to analysis by SCC Online, both a lack of clear judicial precedent for striking it down and concerns about the exception’s removal potentially disrupting the broader marital institution and family structure, a genuine and sharply divided judicial disagreement on the same set of facts and constitutional arguments that left the matter formally unresolved and destined for appeal.

Read this next: CAA in the Courts: The Legal Debate Around the Citizenship Amendment Act

The Case Now Before the Supreme Court

Given the Delhi High Court’s split outcome, the matter moved to the Supreme Court, where it continues being tracked under related petitions including Hrishikesh Sahoo v. State of Karnataka, according to coverage by the Supreme Court Observer and Bar and Bench, with the apex court expected to rule on the exception’s constitutional validity, a decision that would carry binding, nationwide effect regardless of which individual High Court had originally considered the question.

The Central Government’s Position

The central government’s stance on the matter, presented through a counter-affidavit in the ongoing proceedings, has consistently opposed striking down the exception, according to Verdictum’s coverage of the filing, arguing that criminalising marital rape “will destroy the institution of marriage and put the entire family system under great stress,” while separately offering to strengthen alternative legal remedies, specifically citing India’s existing domestic violence law, as a way to address genuine grievances of aggrieved wives without criminalising the specific conduct the exception currently protects.

If you like this, you must read: Bharatiya Nyaya Sanhita: How Modi's Government Replaced the IPC

How the New Bharatiya Nyaya Sanhita Treats the Exception

Notably, when the government replaced the Indian Penal Code with the Bharatiya Nyaya Sanhita, covered in more detail in our earlier article, the new code’s rape provision, now numbered Section 63, retained a broadly similar marital exception rather than removing it during the broader recodification process, though the protected age threshold was raised to 18, closing an earlier loophole that had applied to wives between 15 and 18 years old, according to legal commentary published through the International Journal of Law, Legal and Regulatory affairs. Campaigners have specifically criticised this outcome as insufficient, noting the core exception itself survived the recodification even as the specific age-related loophole was closed, meaning the fundamental legal question the Delhi High Court split on in 2022 remains functionally unresolved under the new code as well.

The Arguments on Both Sides

Women’s rights groups supporting the exception’s removal argue it denies married women bodily autonomy and effectively creates a category of sexual violence the law simply declines to recognise as a crime purely because of the victim’s marital status, an inconsistency they argue has no principled justification given how the same conduct would clearly constitute a serious crime between any other two people. Those defending the exception’s retention, reflected in the government’s own counter-affidavit position, generally argue that criminalising conduct within an ongoing marriage risks being weaponised for harassment in already-difficult domestic disputes and could destabilise family structures, while suggesting existing domestic violence and cruelty laws already provide adequate legal recourse for genuinely aggrieved spouses without requiring a rape-specific criminal provision.

Bottom Line

The marital rape exception, which excludes husbands from rape prosecution for conduct that would otherwise constitute the crime, remains genuinely unresolved in Indian law: the Delhi High Court split directly on its constitutionality in 2022, the matter now sits before the Supreme Court awaiting a final, binding ruling, the central government has formally opposed removing the exception on family-stability grounds while offering to strengthen alternative remedies instead, and the new Bharatiya Nyaya Sanhita retained a broadly similar exception even while closing a separate age-related loophole, leaving campaigners on both sides of this genuinely contested question still awaiting the Supreme Court’s ultimate word.

FAQ

Abhyudaya Verma