Marital Rape and Bharatiya Nyaya Sanhita: Legal Silence and Implications

The Bharatiya Nyaya Sanhita, 2023 (BNS) was enacted to modernise India's criminal justice system and replace the colonial-era Indian Penal Code of 1860. It was presented as a progressive reform meant to align criminal law with constitutional values and contemporary realities. However, despite this objective, Section 63 of the BNS continues to retain the marital rape exception. It states that sexual intercourse by a man with his own wife, as long as she is not below eighteen years of age, does not constitute rape. This retention reflects a serious gap in legislative reform. Instead of fully breaking away from colonial and patriarchal legal structures, the BNS continues to uphold an outdated notion that marriage implies irrevocable consent. By doing so, it denies married women equal legal protection against sexual violence. The law effectively creates a distinction between married and unmarried women, thereby reinforcing gender inequality. From a constitutional perspective, this exception raises significant concerns under Articles 14, 15, and 21 of the Constitution of India. Judicial developments over the years have strengthened the idea of autonomy and consent. In Independent Thought v. Union of India (2017), the Supreme Court read down the marital rape exception in cases involving minor wives, recognising that child marriage cannot override a girl's right to bodily integrity. In Justice K.S. Puttasamy v. Union of India (2017), the Court affirmed the fundamental right to privacy, which includes decisional and bodily autonomy. The constitutional challenge in RIT Foundation v. Union of India (2022), directly questions the validity of the marital rape exception and seeks its removal. Empirical data further highlights the urgency of reform. According to the National Family Health Survey-5 (2019-21), nearly 30% of married women between the ages of 18 and 49 have experienced physical or sexual violence. Despite such alarming statistics, marital sexual assault remains legally unrecognised as rape under criminal law. This legal silence not only prevents justice for survivors but also normalises violence within marriage. Through a feminist legal perspective, consent must be understood as ongoing, voluntary, and individual. Marriage cannot be treated as permanent consent to sexual relations. Bodily integrity and sexual autonomy do not end at the altar. By retaining the marital rape exception under Section 63, the BNS has failed to take a decisive step toward gender justice. Instead of marking a transformative break from colonial thinking, it preserves a framework that prioritises marital status over women's fundamental rights.