“MARITAL IMMUNITY VS. BODILY AUTONOMY: A CRITICAL STUDY OF SECTION 63(EXCEPTION2) AND SECTION 67 OF THE BHARATIYA NYAYA SANHITA, 2023”

Indian rape law is built around consent, but the marital rape exception creates a significant gap in that framework. Section 63 of the Bharatiya Nyaya Sanhita, 2023 (BNS) identifies circumstances in which sexual penetration amounts to rape, including when it takes place against a woman’s will or without her consent. Exception 2, however, states that sexual intercourse or sexual acts by a man with his wife, where she is at least eighteen years old, do not constitute rape. Section 67 addresses non-consensual intercourse by a husband with a wife who is living separately, making it an offence punishable by a substantially lower sentence than rape. Read together, these provisions raise a basic question: if consent is central to the definition of rape, why does a woman’s marital status determine whether her refusal receives legal recognition? Using doctrinal and comparative analysis, this paper examines the relationship between Sections 63 and 67, the constitutional arguments under Articles 14, 15 and 21, and relevant decisions including Independent Thought v. Union of India (2017) and the split verdict in RIT Foundation v. Union of India (2022). It argues that the exception rests on an outdated assumption of permanent marital consent and is difficult to reconcile with modern constitutional protections for privacy, dignity and bodily autonomy. The paper recommends removing the exception and aligning Section 67 with a coherent framework for addressing sexual violence within marriage.