Few questions in Indian criminal law have generated as much sustained constitutional debate as whether a husband can be criminally liable for raping his wife. Exception 2 to Section 375 of the erstwhile Indian Penal Code — carried forward in substance into the Bharatiya Nyaya Sanhita — excludes sexual intercourse or acts by a man with his own wife, provided she is not under eighteen, from the definition of rape. That single statutory carve-out is currently the subject of one of the most closely watched matters pending before the Supreme Court of India.

How the Litigation Reached the Supreme Court

In May 2022, a two-judge bench of the Delhi High Court delivered a split verdict on petitions challenging the marital rape exception, with one judge striking it down as unconstitutional and the other upholding it, citing concerns about potential misuse and the existing availability of remedies under domestic violence and cruelty provisions. That split cleared the way for a direct appeal to the Supreme Court, which has since heard extensive arguments from petitioners, the Union Government, and intervenors, and reserved its position on multiple occasions as the government's stance has evolved.

The Core Constitutional Question

Petitioners argue that the exception violates Articles 14, 19, and 21 of the Constitution — equal protection of the law, the freedom to make personal choices, and the right to bodily autonomy and dignity — by carving marital status out as a shield against an otherwise universally applicable offence. The Union's position, articulated in successive affidavits, has shifted from broadly defending the exception on grounds of protecting the institution of marriage, to acknowledging the need for a calibrated legislative response, while cautioning against treating criminalisation as the sole remedy given the availability of provisions addressing cruelty and domestic violence.

The Court has repeatedly noted the tension between two legitimate concerns: the constitutional imperative that consent within marriage cannot be presumed as a matter of law, and the practical difficulty of adjudicating an intensely private allegation within an ongoing marital relationship.

Where Things Currently Stand

  • The exception remains in force. Absent a Supreme Court ruling striking it down, or legislative amendment, non-consensual intercourse within marriage — where the wife is an adult — does not attract rape liability under the BNS.
  • Existing remedies for a married woman facing non-consensual sexual conduct by a spouse include Section 85/86 BNS (cruelty, carried forward from Section 498A IPC), provisions of the Protection of Women from Domestic Violence Act, 2005, and, in specific fact patterns, other bodily-harm offences.
  • Several state high courts have taken divergent positions in individual cases, underscoring the lack of a settled, binding pan-India position pending the Supreme Court's final ruling.

Why This Matters Beyond the Individual Case

The eventual ruling will have implications well beyond criminal law doctrine. It will shape how family law practitioners advise clients in matrimonial disputes, how domestic violence complaints are drafted and litigated, and how corporate policies addressing employee welfare and internal grievance mechanisms account for the legal remedies available to affected individuals. This is a matter that any family law or criminal law practice should be actively tracking, given the pace at which the Court's engagement with the issue has intensified.