When the Bharatiya Nyaya Sanhita replaced the Indian Penal Code in July 2024, there was significant public discussion about what would change.
One thing that did not change was the marital rape exception.
Section 63 of the BNS, which defines rape, contains the same exception that Section 375 of the IPC contained: sexual intercourse by a husband with his wife does not constitute rape if the wife is fifteen years of age or above.
The exception was debated extensively before the legislation was passed. It was not resolved.
Adv. Amarjit Singh addresses this provision in Legal and Constitutional Rights of Women in India with the directness it deserves, because the gap between what this provision says and what constitutional principles of dignity and equality require is not a matter of interpretation. It is a documented legal contradiction.
What the exception actually provides:
Under the current law, a husband who has sexual intercourse with his wife without her consent is not committing rape as defined in Section 63, provided the wife is above eighteen years of age.
She may have other legal remedies. Cruelty provisions under Sections 85 and 86 BNS can cover some conduct that occurs within marriage. The Domestic Violence Act addresses sexual violence within domestic relationships. These provisions can be invoked.
But they are not the same as the primary offence of rape. They carry different presumptions, different evidentiary requirements, and different potential consequences for the accused.
What courts have said and what remains unresolved:
Several High Courts have issued decisions on whether the marital rape exception is constitutionally valid. The Delhi High Court in a 2022 decision produced a split bench opinion, with one judge holding the exception unconstitutional and one holding it valid. The matter was referred to the Supreme Court, where it remains pending.
The constitutional questions are significant. Articles 14, 15, and 21 of the Constitution guarantee equality, non-discrimination, and the right to life and personal liberty including dignity. A provision that treats the same conduct differently based solely on the marital relationship between perpetrator and victim raises questions under all three provisions.
The legislative decision to retain the exception in the new code, despite the pending constitutional challenge and despite significant criticism from legal scholars, women’s rights organizations, and a portion of the judiciary, represents a choice that Adv. Amarjit Singh documents honestly.
What the honest legal picture requires acknowledging:
A legal guide that presents the current law without acknowledging the ongoing constitutional challenge, the split judicial opinion, and the documented civil society position that the exception should be removed would be presenting an incomplete picture.
A legal guide that presents the constitutional arguments without acknowledging that the law currently contains the exception and that women navigating situations involving this issue must work within the current legal framework as it exists would equally be presenting an incomplete picture.
The book addresses both dimensions, because women deserve legal information that is complete, accurate about the current state of law, and honest about where the law fails to reflect constitutional values.
Legal and Constitutional Rights of Women in India by Adv. Amarjit Singh is available on Amazon, Flipkart, Kindle, and Google Books. Buy now and understand the honest and complete picture of how the law currently stands and where it remains contested.
Grab your copy now: https://amzn.in/d/0733Kuse
