This paper is a short legal and constitutional analysis of the Exception to Marital Rape under the Indian criminal law, from the evolution path of the exception from “seventeenth-century English common law under Sir Matthew Hale’s Doctrine of Irrevocable Consent” to its Continued use in Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023. Study analyses an immediate conflict between traditional social morality, which seeks to preserve the institutional family unit, and modern constitutional morality, which demands absolute gender justice and personal sovereignty. The paper examines statutory immunity as a statesanctioned violation of fundamental rights by testing the exception against “Golden Triangle” of the Indian Constitution, i.e., Articles 14, 19, and 21. The paper ends with arguing that constitutional morality must override public social morality and suggests procedural safeguards to help move towards full criminalisation.
Rishabh Arora (Mon,) studied this question.