MARITAL RAPE IN INDIA: A CRITICAL ANALYSIS OF THE LEGAL FRAMEWORK, CONSTITUTIONAL CHALLENGES AND JUDICIAL APPROACH

Marital rape is one of the most contested questions in contemporary criminal law, constitutional jurisprudence and gender justice. It refers to non-consensual sexual intercourse or sexual acts committed by a spouse against the other. In India, the principal controversy arises from the marital rape exception, which excludes certain sexual acts by a husband with his wife from the definition of rape where the wife is not below eighteen years of age. Although Indian law recognises several forms of domestic violence and cruelty within marriage, the general offence of rape does not currently apply to non-consensual sexual intercourse between an adult husband and wife in the same way as it applies outside marriage. The Bharatiya Nyaya Sanhita, 2023 (BNS), in force from 1 July 2024, retained this exception in Section 63, Exception 2. Its continuation raises questions concerning equality before law, bodily autonomy, dignity, privacy and the constitutional protection of women. Decisions such as Independent Thought v. Union of India, RIT Foundation v. Union of India and Hrishikesh Sahoo v. State of Karnataka have shaped the debate, although they do not amount to a final Supreme Court ruling invalidating the exception for adult wives. This paper examines the meaning and historical development of marital rape, the applicable statutory provisions, constitutional arguments, leading judicial decisions, comparative approaches and possible reforms. It adopts a doctrinal methodology and argues that any reform should place consent and bodily autonomy at its centre while preserving due process, fair investigation and the presumption of innocence.