India's New Criminal Law Still Allows Marital Rape Exemption for Husbands
India’s new criminal law, the Bharatiya Nyaya Sanhita 2023 (BNS), has kept a controversial rule that shields husbands from rape charges. Under Section 63, a man cannot be prosecuted for raping his wife if she is over 18. This exemption has sparked debate, as it contradicts constitutional rights to equality and bodily autonomy.
The issue has reached the Supreme Court, which has yet to deliver a final verdict on whether the law violates women’s fundamental rights.
The marital rape exception dates back to Section 375 of the Indian Penal Code (IPC). Until recently, husbands were exempt from prosecution if their wife was above 15, regardless of consent. The BNS raised the age limit to 18 but kept the core exemption intact.
India’s Constitution guarantees equality under Article 14 and bodily autonomy under Article 21. However, the marital rape exception denies married women the same legal protections as unmarried women. The Supreme Court has called the rule arbitrary but has not yet ruled on its constitutionality for adult wives. The Delhi High Court previously delivered a split verdict on the issue. One judge ruled the exception unconstitutional, while another upheld it. This legal uncertainty has left activists and legal experts demanding urgent reform. Most countries have criminalised marital rape, but India remains among the few still allowing the exemption. Critics argue the BNS missed an opportunity to address this gap in women’s rights.
The Supreme Court must now examine Section 63 of the BNS to decide its validity. Until then, married women in India will continue to lack legal protection against non-consensual sex within marriage. The outcome will determine whether the law aligns with constitutional guarantees of equality and dignity.
