MARITAL RAPE EXCEPTION UNDER SECTION 63 OF THE BHARATIYA NYAYA SANHITA, 2023: CONSTITUTIONAL INCOMPATIBILITY, AUTONOMY, AND THE LIMITS OF MARITAL IMMUNITY
AUTHORS – KAVYA JOHAR, JATIN MEENA & HARSHRAJ CHOUHAN
FOURTH YEAR STUDENTS AT NATIONAL LAW INSTITUTE UNIVERSITY
BEST CITATION – KAVYA JOHAR, JATIN MEENA**, HARSHRAJ CHOUHAN, MARITAL RAPE EXCEPTION UNDER SECTION 63 OF THE BHARATIYA NYAYA SANHITA, 2023: CONSTITUTIONAL INCOMPATIBILITY, AUTONOMY, AND THE LIMITS OF MARITAL IMMUNITY, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 6 (1) OF 2026, PG.988-997, APIS – 3920 – 0001 & ISSN – 2583-2344.
Abstract
The marital rape exception preserved under Section 63 of the Bharatiya Nyaya Sanhita, 2023[1], continues a colonial legal fiction that presumes irrevocable consent within marriage. By excluding sexual intercourse by a husband with his wife above eighteen years of age from the definition of rape, the provision creates a structural immunity grounded in marital status. This paper argues that the exception is unconstitutional under Articles 14, 15, and 21 of the Constitution of India. Drawing upon transformative constitutional jurisprudence developed in decisions such as K.S. Puttaswamy v. Union of India[2], Joseph Shine v. Union of India[3], Navtej Singh Johar v. Union of India[4], and Independent Thought v. Union of India[5], this paper demonstrates that the marital rape exception fails the tests of reasonable classification, substantive equality, and proportionality. It further argues that the doctrine of “perpetual consent” is incompatible with contemporary understandings of bodily autonomy and dignity. By situating the issue within comparative constitutional frameworks and engaging with counter-arguments concerning institutional stability and misuse, this paper concludes that the marital rape exception cannot survive constitutional scrutiny and must be repealed.
[1] Bharatiya Nyaya Sanhita 2023, s 63 Exception 2.
[2] K.S. Puttaswamy v Union of India (2017) 10 SCC 1.
[3] Joseph Shine v. Union of India (2019) 3 SCC 39
[4] Navtej Singh Johar v. Union of India (2018) 10 SCC 1.
[5] Independent Thought v. Union of India (2017) 10 SCC 800.