Marital Rape: A Non-Criminialized Crime in India

India is currently one of only 36 countries in the world that has not criminalized marital rape. This omission survives in the present criminal code through Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2024, which replaced the identically worded exception under Section 375 of the Indian Penal Code, 1860. Under this provision, non-consensual sexual intercourse by a husband with his wife, provided that she is not a minor, falls outside the legal definition of rape altogether, regardless of the force, coercion, or harm involved. This creates a striking contradiction in Indian law and policy. Over the past few decades, India has taken visible steps toward gender parity economic participation schemes, the 2023 Women's Reservation Act guaranteeing seats in the Lok Sabha, and civil remedies such as the Protection of Women from Domestic Violence Act, 2005. Yet criminal law continues to treat a married woman's consent to sexual intercourse as legally irrelevant once she enters marriage, effectively denying her bodily autonomy within the one relationship where she is statistically most vulnerable to sexual violence. This paper argues that the marital rape exception is not a neutral legislative gap but an active, patriarchal carve-out rooted in colonial-era doctrines that treated a wife's legal identity as merged with her husband's. Drawing on constitutional provisions (Articles 14 and 21), judicial reasoning from cases such as Independent Thought v. Union of India and the split verdict in RIT Foundation v. Union of India, and the pending batch of petitions currently before the Supreme Court challenging Exception 2, this paper examines why successive governments have resisted reform, evaluates the state's argument that criminalization would destabilize the institution of marriage, and considers whether existing remedies (such as the PWDVA and Section 498A) are adequate substitutes for criminal recognition. The paper concludes by asses...