The Marital Rape Exception

In one line

The one place where the criminal law still names a person a man may not be prosecuted for raping, and the state of the question after Independent Thought.

In the wording a student can write in an exam: Exception 2 to section 63 of the Bharatiya Nyaya Sanhita 2023 provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape; the words "not being under eighteen" are the result of Independent Thought v. Union of India, AIR 2017 SC 4904, which read down the corresponding exception in the Indian Penal Code so far as it related to a girl child below eighteen, on the grounds that it was arbitrary and violative of articles 14, 15 and 21 and was inconsistent with the Protection of Children from Sexual Offences Act 2012, which must prevail; and the Court in that case expressly stated that nothing in the judgment was to be taken as an observation one way or the other on the issue of marital rape, so the wider question remains open.

What the exception does and does not cover

It covers sexual intercourse and sexual acts by a man with his own wife, aged eighteen or over.

It does not cover a wife under eighteen, since Independent Thought.

It does not cover a wife living separately, because section 67 makes sexual intercourse by a man with his own wife living separately, whether under a decree of separation or otherwise, without her consent, an offence in itself.

It does not cover other offences. Cruelty under section 85, hurt, grievous hurt, criminal intimidation and the offences under the Protection of Women from Domestic Violence Act 2005 are all available on the same facts. Section 3 of that Act defines domestic violence to include sexual abuse, so a wife has a civil remedy for conduct which is not an offence of rape.

And it does not cover conduct falling outside the definition of a wife, which is why the age question mattered so much.

The argument for removing it

One: it rests on a fiction. The historical justification was that the wife had given a general consent by the marriage, irrevocable during it. That proposition cannot survive the definition of consent now in Explanation 2 to section 63, which requires an unequivocal voluntary agreement communicated to the specific sexual act. A general consent given once, to acts unspecified, is the opposite of what the section requires.

Two: article 14. Two women subjected to the same act are treated differently according to whether the man is married to them. The differentia is marriage; the object of the offence is the protection of bodily autonomy; and the relation between the two is what has to be established.