Why in News?

• The Supreme Court questioned whether a husband can be prosecuted for rape when the law still provides a marital rape exception.

• The Court recognised that involuntary sexual intercourse within marriage makes the woman a victim, but questioned whether the State can legally classify it as “rape” under the present penal law.

Legal Position:

• Under IPC Section 375, Exception 2 excluded sexual intercourse by a husband with his wife from the definition of rape, subject to the prescribed age limit.

• Bharatiya Nyaya Sanhita (BNS), Section 63 retains this marital exemption, while the wife’s age threshold has been raised to 18 years.

• Thus, marital rape is presently not a separate criminal offence in India where the wife is an adult.

Key Issues:

• Individual autonomy vs marital relationship: Marriage cannot automatically eliminate bodily autonomy and consent.

• Constitutional validity: Whether the exception violates Articles 14, 15 and 21.

• Judicial vs legislative role: Whether courts can invalidate/read down the exception or Parliament should decide.

• Gender justice: Protection of married women from sexual violence.

• Criminal law principle: Courts generally cannot create a new offence where Parliament has expressly provided an exemption.

Judicial Developments:

• Karnataka High Court, 2022: Allowed prosecution of a husband for rape, emphasising that marriage cannot become a licence for sexual violence.

• The J.S. Verma Committee (2013) had recommended removing the marital rape exception.

• The Supreme Court is examining the constitutional and legal validity of the existing exception.

Way Forward:

• Clear legislative policy on marital rape.

• Balance marital privacy with individual dignity and bodily autonomy.

• Ensure effective remedies against sexual violence within marriage.

• Any reform should be supported by constitutional principles, gender justice and due process.

Conclusion:

Marriage cannot be treated as permanent consent. At the same time, criminalisation of marital rape involves significant questions of constitutional rights, criminal-law policy and legislative competence. A clear and rights-based legal framework is therefore essential.

 Mains Question:

“The marital rape exception raises a conflict between individual bodily autonomy and existing criminal-law provisions. Discuss in the light of constitutional principles and judicial developments.”