Challenging the Marital-Consent Fiction: India’s Fragmented Response to the Marital Rape Exception

The marital rape exception (‘MRE’) remains India’s starkest legal blind spot: a single colonial-era exception immunises husbands from prosecution for forced sex with their wives, even as constitutional jurisprudence champions bodily autonomy. The impunity is not merely historical, it is architecturally built into our penal code.

Section 63 of the Bharatiya Nyaya Sanhita (‘BNS’), formerly Section 375 of the Indian Penal Code (‘IPC’), penalises rape, i.e., non-consensual sexual acts. For the purpose of this article, given the jurisprudence and the existing literature on Section 375, we will still use the IPC as the frame of reference to refer to the MRE. Although our analysis relies on the IPC jurisprudence, the concerns identified are reproduced in BNS, as it retains the exception in substance. Hence, the same interpretative problems are bound to persist under the BNS.

375. Rape.— A man is said to commit “rape” if he…

Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Exception 2 which entails the marital rape exception (‘MRE’), codifies a disturbing anomaly, namely, the presumption of irrevocable sexual consent within marriage. In cases alleging marital rape, certain Courts have invoked two disparate provisions to remedy these harms, namely, Section 377 (‘unnatural sex’) and Section 498A (‘marital cruelty’) of the IPC; however, others have refused their applicability, thus fragmenting the legal response to marital rape. Recent High Court rulings illustrate this disjointed approach: Gorakhnath Sharma v. State of Chattisgarh, Manish Sahu v. State of Madhya Pradesh and Banti Jatav v. State of Madhya Pradesh, and X v. State (NCT of Delhi). These judgements, dealing with cases which arose under the IPC regime, invoked the MRE to bar the use of Section 377 against husbands, declaring that once a wife is over 18, her consent is legally presumed even for non-penetrative sexual activity. Collectively, these judgments entrench the fiction of irrevocable marital consent, effectively licensing all sexual acts within marriage and foreclosing rape prosecutions against husbands.

While much of the existing legal literature focuses on the constitutional validity of the marital rape exception, this piece goes further by examining how courts have systematically mislabelled the distinct harms arising from marital rape. We critique the judicial tendency to channel this offence into other criminal law provisions, which leads to harms of fit and labelling.

In the first section, we trace the Victorian origins of the exception, interrogating its enduring doctrinal contradiction in light of evolving constitutional jurisprudence. In the second section, we analyse judicial decisions on prosecutions under Sections 377 and 498A of the IPC, tracing how marital sexual violence is dismissed even under other similar offences. We then interrogate the underlying normative basis of the MRE. In the third section, we argue that MRE is a manifestation of the sex-consent matrix embedded in family law, which views marriage as a site of sexual entitlement rather than a consensual relationship. Finally, to conclude, we call for a twin-track reform approach entailing the removal of the MRE and a subsequent restructuring of family law to uphold autonomy as foundational to the institution of marriage. For the purposes of this piece, we primarily use the jurisprudence under the IPC, although these critiques would be applicable to the MRE under the BNS as well. This piece mainly deals with the normative and doctrinal treatment of marital rape and does not delve significantly into sociological or empirical research on the same.

I. From Common-Law Fiction to a Constitutional Question

Originating from Sir Matthew Hale’s 1736 dictum, the MRE conceives the identity of the woman as a chattel subject to her husband’s proprietorship. The dictum was not merely a frozen statement of law but the reflection of early Victorian morality that constructed marriage as a hierarchical and proprietary institution—one that eclipses the wife’s legal personality by coverture, treats non-consensual sexual access as the husband’s right and subdues the wife’s autonomy under the marital union. Although articulated in a pre-Victorian context, this doctrine was entrenched during the Victorian era and subsequently canonised in colonial statutes to crystallize a husband’s  immunity from rape liability against his wife.

Doctrinally, the clause functioned as a complete defence, converting acts otherwise satisfying all ingredients of Section 375 into ipso facto lawful conduct. This position, however, was dismantled in England as anachronistic and unacceptable in R v R. In explicitly acknowledging that the common law must evolve with changing social values, the case marked England’s formal abandonment of the Victorian moral assumptions that had sustained the MRE. The departure was rooted in the dynamically evolving status of the wives. The Court held that marriage has evolved into a partnership of equals, not a dominance of husband over wife. The old idea that a wife gives irrevocable consent to sexual intercourse is unacceptable today. Although this rule was abandoned in England, Indian criminal law continues to retain it, perpetuating a patriarchal norm that marriage itself furnishes perpetual and irrevocable consent.

Scholars have long characterised this legal fiction as antithetical to the guarantee of equality, dignity, and bodily integrity, which fall under Articles 14, 19 and 21 of the Indian Constitution. By treating wives as chattel, first of the father, then of the husband, the exception resurrects the doctrine of coverture, under which a married woman’s legal personality is subsumed into that of her spouse.

Judicial engagement has been piecemeal. In Independent Thought v. Union of India (2017), the Supreme Court read down the age limit in Exception 2 from 15 to 18 in order to reconcile the IPC with the overriding provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO). Thus, it is not legally permissible to rape girls who are involved in child marriages, i.e., who are married before the age of 18. The Court’s ratio turned on statutory conflict between the IPC and the POCSO, not on a substantive repudiation of the marital-consent fiction. Its reliance on the UK Court’s Regina v Clarke (1949) to clarify that the decision merely harmonised inconsistent enactments underscores the Court’s deliberate avoidance of deciding upon the larger constitutional infirmity. Accordingly, marital rape was not recognised as a sui generis offence; the decision addressed only the statutory anomaly affecting minors.

A direct challenge to the MRE in Section 375 of the IPC arrived through a batch of writ petitions in RIT Foundation v. Union of India, which assailed Exception 2 as violative of Articles 14 (equality), 15 (non-discrimination on grounds of sex), 19(1)(a) (expression of sexual autonomy) and 21 (dignity and personal liberty). The Delhi High Court’s Division Bench delivered a split verdict in May 2022. Justice Rajiv Shakdher, adopting a substantive-equality lens, invalidated the exception, branding it a “firewall” that arbitrarily insulates one class of putative rapists—married men—while exposing every other offender to prosecution. He further held that the carve-out fails the reasonable-classification test: it distinguishes identically situated victims purely on marital status without any rational nexus to the object of rape legislation, namely the preservation of sexual autonomy. Justice C. Hari Shankar, in his divergent opinion, upheld the provision, invoking legislative competence, societal complexity and the putative risk of wives filing false cases. Responding to the reasonable classification test, he observed that the legislature could classify offences by recognising varying “degrees of evil.” He held that so long as the basis of such classification was reasonable, it must be respected, but if the basis was absent, arbitrary, or unconstitutional, the provision could not stand. In the absence of a majority, the matter now lies before the Supreme Court.

Meanwhile, the constitutional landscape on autonomy has markedly evolved over the past few decades. Landmark pronouncements such as K.S. Puttaswamy v. Union of India (privacy), Joseph Shine v. Union of India (decriminalisation of adultery) and Shafin Jahan v. Asokan K.M. (marital choice) have entrenched bodily autonomy and decisional freedom as core components of Article 21. Against this jurisprudential backdrop, MRE appears increasingly untenable. Yet until the Supreme Court resolves the reference emanating from RIT Foundation, married women remain in what scholars term a “doctrinal limbo”: constitutionally endowed with autonomy in foro interno (in principle), but denied the full panoply of criminal protections in foro externo (in practice) when the assailant is their own spouse.

Notably, the BNS 2023 retains the Explanation under Section 63(2) (rape). It thus carries forward Hale’s antiquated presumption into India’s putative “modernised” and “decolonised” penal code, confirming that legislative reform has yet to confront the constitutional infirmity at the heart of the exception.

II. Mislabelled Harm: Why Sections 377 and 498A Do Not Suffice

Prosecutors and judges have understandably searched for other doctrinal footholds in Setions 377 (‘unnatural sex’) and 498A (‘cruelty’) of the IPC while the constitutionality of the MRE hangs in the balance, but those footholds crumble under scrutiny.

Section 377 – A Misinterpretation of Navtej Singh Johar

Section 377 of the IPC reads as follows:

“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

Hale’s principle has informed the judicial interpretation even in rulings where the MRE intersects with the erstwhile Section 377 of the IPC. Several problematic decisions rendered recently by High Courts illustrate how marital rape was treated under the IPC. In February 2025, in Gorakhnath Sharma v. State of Chhattisgarh, the Chhattisgarh High Court sought to reconcile Exception 2 of Section 375 with Section 377 in a manner that preserved the marital-consent fiction as absolute, by extending the marital rape immunity to cases of forced sexual intercourse prosecuted under Section 377. This interpretation was used to justify the notion that marriages effectively license all sexual acts between husband and wife. Just three months later, in Manish Sahu v State of Madhya Pradesh, the High Court of Madhya Pradesh ruled that the consent of the wife is immaterial if she was above the prescribed age, regardless of the nature of sexual act, extending this principle to acts beyond penile-vaginal penetration. Thus, the Court effectively held that the husband could not be prosecuted for non-consensual sexual acts against his wife under Section 377. This precedent was directly relied on by the same Court  10 days later in Banti Jatav v. State of Madhya Pradesh to conclude its findings that marital rape was not recognised under Section 377 since “absence of consent of wife for unnatural act loses its importance” once Exception 2 was applied broadly. Similarly, in X v. State (NCT of Delhi), the Delhi High Court reasoned that Section 377 of IPC could not be applied to criminalise marital sex, thus solidifying the notion of subsumed consent within marriage.

We argue that all these judgments relied on a misinterpretation of Navtej Singh Johar to arrive at this problematic conclusion. The flawed judicial reasoning proceeded as follows:

First, within marriage, consent is presumed: wives are barred from prosecuting their husbands under Section 375 for non-consensual sexual intercourse.

Second, after the 2013 criminal laws amendment, Section 375 was expanded to include non-peno-vaginal sexual acts (previously considered “unnatural”) that had earlier been prosecutable only under Section 377; this meant that the marital rape exception now covered non-penetrative and other “unnatural” offences as well. This collapsed the conceptual boundary of the kinds of sex covered by sections 375 and 377.

Third and final, because sections 375 and 377 effectively covered the same kinds of sexual offences, the courts in the aforementioned cases extended the logic of marital impunity from Section 375 to Section 377 as well, despite any textual basis or prior precedents for this conclusion.

This approach of the Courts wholly undermined the ratio of Navtej Singh Johar. Navtej Singh Johar only read down Section 377 to decriminalise consensual same-sex intercourse. The verdict clarified that such consent to sex must be free, voluntary and devoid of any duress or coercion and that the provision would continue to govern any non-consensual sexual acts against adults. Thus the conceptual collapse of Sections 375 and 377 was problematic because it defeated the whole point of only ‘reading down’ and not ‘striking down’ Section 377 in the first place. This was recognised in other cases such as Nimeshbhai Bharatbhai Desai vs State Of Gujarat  where the Gujarat High Court observed that Section 377 could still be used to prosecute non-consensual sex among spouses.

Although the application of Section 377 in case of marital rape was problematic and inconsistent, the failure of BNS in retaining any equivalent protection akin to Section 377 further compounds the injustice. This statutory omission throws the baby out with the bathwater, for both the queer community and for wives subjected to rape.

III. Section 498A – Rape As Reduced To Marital Cruelty

Another provision often resorted to by courts in cases of marital rape is that of Section 498 of the IPC, which reads as follows:

“Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.”

In Gorakhnath Sharma, Section 498A was not in issue, as the appeal was against the conviction of the appellant under Sections 377, 376 and 304 of the IPC. In contrast, the Banti Jatav case was regarding the quashing of the FIR for offences under Sections 377, 323 and 498A of IPC. The Madhya Pradesh High Court in the latter case routed the conviction through Section 498A of the IPC (now Section 85 of BNS), ruling that “committing unnatural sex with wife against her wishes and on her resistance, assaulting and treating her with physical cruelty will certainly fall within the definition of cruelty”.

The usage of Section 498A, as in the case of Banti Jatav, although a welcome practical move, comes with its own issues. Section 498A was designed to capture patterns of domestic cruelty (sexual, physical, emotional) culminating in grave consequences such as suicide or grievous hurt. Forced intercourse may indeed constitute cruelty, but reducing rape to one item in a catalogue of mistreatment diminishes the specific sexual harm involved. Criminal law’s labels are not mere semantics; they perform expressive and deterrent functions. Calling marital rape “cruelty” dislocates it from the broad definition of rape that Parliament painstakingly expanded in 2013 to include penetrative acts far beyond penile-vaginal intercourse. It also leaves sentencing at the relatively modest scale envisaged for cruelty (imprisonment for a term which may extend to three years), rather than the severe penalties rape attracts (rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life).

There is a deeper rule-of-law problem, which informs the Article 14 challenge. Two women subjected to identical non-consensual penetration experience the same invasion of autonomy and bodily security. Yet if their assailants are respectively a stranger and a spouse, the law treats the former as a rapist and the latter, at most, as “cruel”. The epistemic violence carried out by the law here, which labels forced sexual intercourse with one’s wife ‘cruelty’ as opposed to rape, can have deleterious consequences on the victim’s subjecthood.  It can lead to cognitive dissonance as it denies their selfhood by making impossible the naming of an experience which has occurred to them, which is otherwise available to other victims of rape. Further, such violence often inflicts severe harm on the victim’s self-trust, resulting in their crippling self-confidence necessary to identify, articulate or resist the violation of their body.

For these reasons, international jurisprudence has struck down this exception. In People v. Liberta, the New York Court of Appeals recognised rape not merely as a question of consent, but more profoundly as a degrading attack on bodily autonomy and long-lasting physical and psychic harm. The Court held that the notion of marriage licensing forcible rape is both “absurd and irrational”, further affirming that a married woman is entitled to the same control over her body as an unmarried woman. Similarly, in C.R. v UK, the ECHR affirmed that the civilised concept of marriage necessitates the abandonment of the exception. Even India’s immediate neighbour, Nepal, has underscored the need for equal punitive measures for all forms of rape irrespective of the relationship between the aggressor and the victim. Therefore, holding on to Section 498A as a proxy not only mislabels the harm, but perpetuates an inequality the Constitution refuses to support.

The doctrinal mislabelling explored in Section 2 is not an isolated aberration; it flows organically from the deeper architecture of Indian marital law. Courts and prosecutors reach for Sections 377 and 498A precisely because the broader legal framework already treats sexual access within marriage as presumptively owed, not continuously negotiated. To understand why criminal doctrine keeps defaulting to these ill-fitting proxies and not the offence of rape, we must step back and examine the normative foundations that make such alternatives seem plausible in the first place. The next section therefore turns to the “sex-consent matrix” embedded in family statutes; we show how marriage itself is legally constructed as a site of entitlement rather than autonomous choice and how that construction sets the stage for the very impunity analysed above.

IV. The Sex-Consent Matrix: How Marriage Law Sets The Stage For Marital Rape

Central to the MRE lies a flawed premise: marriage creates an implied, irrevocable consent to all sexual acts. This fiction attacks the root of consent, which is ironically defined in Section 375 itself as an ongoing, revocable agreement that must be freely given for each sexual encounter.

The norm which subordinates women within marriage by making their consent legally irrelevant infuses several areas of law, most prominent of them family law. We argue that Indian family statutes, on the whole, are premised on this proposition: sex is central to marriage, while consent is (fairly) irrelevant, which one of us has articulated previously as the “sex-consent matrix”.  We demonstrate the validity of this proposition by drawing from three examples within marriage law in India.

First, neither the Hindu Marriage Act (HMA) nor the Special Marriage Act (SMA) demands an affirmative “I do” from the parties. A wedding is valid so long as there is no demonstrable fraud, force, or mental incapacity; the law presumes that a ritual performed before witnesses automatically captures real consent. This negative framing allows social or familial pressure to masquerade as volition. This means that the very entry into marriage may begin without explicit consent, neither to one’s partner nor to the institution of marriage itself.

Scholars argue that “Hindu marriage came to be recognised as a sacrament and not a contract, thus precluding any need for the consent of the bride or the groom to deem a marriage valid.” It seems that such a proposition had crept into the SMA as well, which is almost a wholesale replication of the substantive elements of the HMA (especially regarding the grounds of divorce). There are severe cases of non-consensual marriage in India where it is not just an issue of manufactured consent, but very real forms of coercion (at gunpoint, in some instances!) to get married. Statistics show that this issue is very much gendered: three girls are forced into marriage every minute in India. This paints a dark picture of the full and free status of consent to marriage in India.

Second, Section 9 of the HMA and Section 22 of the SMA empowers courts to decree “restitution of conjugal rights” (RCR), compelling a spouse who has left the matrimonial home to return and resume cohabitation. This provision is also found in Muslim personal law. Although some contemporary judgments have tried to read autonomy into the provision or used factors such as cruelty to deny RCR applications, its core premise is unmistakable: the institution of marriage can order physical—and by implication, sexual—access even when an individual expressly withholds it. The threat of legal coercion blurs the line between marital expectation and entitlement, and violates individuals’ autonomy. A challenge to RCR’s constitutionality is currently pending before the Supreme Court. Thus, this is another key provision through which the sexual obligation of spouses is hardcoded within the law.

Third, most of the grounds on which a marriage may be annulled or dissolved revolve significantly around sex. Impotence, non-consummation, or wilful refusal to have intercourse render the tie voidable under the HMA and SMA. Divorce can be obtained by Parsis under the Parsi Marriage and Divorce Act, 1936 and by Christians under the Indian Divorce Act, 1869 in case of wilful non-consummation of the marriage. Statutory language thus signals that procreative heterosexual sex is part of the definitional core of marital obligation, and that withholding it is tantamount to undermining the marriage itself..

Taken together, these norms construct a legal matrix in which sex is central and consent is peripheral or a non-est in marriage. We submit that criminal law further entrenches this presumption. Seen against this backdrop, the MRE thus is not an aberration—it is the logical climax of a framework that treats a wife’s body as an element of conjugal property. So long as the law assumes that entering marriage equals perpetual consent, as demonstrated above, criminal doctrine will continue to struggle over the notion that a man can indeed rape his wife, which is but a logical outcome of the said assumption. Dismantling Exception 2 to Section 375 of the IPC/Section 63 of the BNS is essential, but unless the family law legislations that equate marriage with sexual duty are also reworked, the promise of autonomy will remain fragile.

V. The Way Forward – Brief Thoughts

The sex-consent matrix must be examined and challenged. Sexual autonomy should be at the root of all laws in India, and certainly those relating to marriage, whether they are personal laws or criminal laws. Reform must therefore proceed along two tracks.

The first track is immediate: Striking down Exception 2 is the essential first step. The marital rape exception represents a glaring constitutional anomaly that undermines the very foundation of India’s commitment to equality, dignity, and bodily autonomy. The law must unequivocally affirm that consent is not a one-time transfer but an ongoing, revocable act, regardless of marital status. Yet, reform demands more than deleting one clause. If we leave the surrounding sex-consent matrix intact, we condemn survivors to navigate a legal terrain where consent is professed in criminal law yet eroded in family law.

The second track is structural. We need to examine the myriad ways in which sexual submission is coded into various aspects of family law-related legislations, and they should be reworked to ensure that consent and autonomy within marriage are recognised at every stage. This would involve a host of actions: introducing an explicit requirement of consent to marry, removing the restitution of conjugal rights provision, and rethinking several grounds of divorce based on the withdrawal of sex/exercise of sexual autonomy.

Unless the basis and the structure of family law and criminal law in India are reworked, the MRE will remain as a symptom of a deeper, more problematic assumption about women’s sexuality within marriage. It is time to iterate and reiterate the fundamental principle that consent and nothing but consent should be the sole boundary of lawful sexual intercourse, whether within or beyond marriage.

**Jwalika Balaji is a Research Fellow at the Vidhi Centre for Legal Policy. Mandar Prakhar is an Associate Fellow at the Vidhi Centre for Legal Policy. Views are personal.