By Advocate Karan Dua | Vintage Litigation, New Delhi | Published: August 2026

The marital rape exception in India remains one of the most significant unresolved constitutional questions in Indian family and criminal law. The Supreme Court is considering whether the legal exception for sexual intercourse between a husband and his adult wife should continue, while the present statutory framework remains in force. With the Court scheduled to address the matter on September 9, 2026, this article explains the marital rape exception India debate, how the case reached the Supreme Court, the arguments on both sides, and what the law currently means for matrimonial disputes.

What’s Actually Being Challenged

At the centre of this case is Exception 2 to Section 375 of the Indian Penal Code, which provided that sexual intercourse or sexual acts by a man with his own wife — the wife not being under a certain age — is not rape, regardless of consent. Following the Supreme Court’s 2017 ruling in Independent Thought v. Union of India, that minimum age was raised to 18, closing what had been a stark inconsistency with other child protection laws. But the exception itself, as it applies to adult wives, remained fully intact and legally operative.

With the transition to the Bharatiya Nyaya Sanhita, 2023, this framework carried forward into the new criminal code — the marital exception continues to exist in the current statutory scheme, meaning the underlying legal question the courts are grappling with hasn’t been resolved simply by the recodification of India’s criminal laws.

Why This Case Carries Such Weight

It’s worth understanding why a single statutory exception has generated such an extended, closely watched legal battle. The question isn’t simply about one provision in isolation — it touches on how Indian law conceptualises consent within marriage more broadly, how courts balance constitutional rights against concerns about the practical administration of criminal justice within family relationships, and how much weight should be given to Parliament’s role versus judicial interpretation in resolving genuinely difficult social questions.

This is also a matter where the practical stakes are significant regardless of which way it’s eventually decided. If the exception is struck down, courts, police, and prosecutors would need to develop a framework for handling an entirely new category of criminal allegation within the specific, often highly contested context of marital breakdown — a context already familiar with concerns about both genuine harm and, in some proportion of cases, allegations made strategically during contentious divorce proceedings. If the exception is retained, critics will continue to argue that Indian law tolerates a form of legally sanctioned non-consent that would be unthinkable in any other context. Neither outcome resolves every concern raised by either side, which is part of why this case has proven so difficult to bring to a final resolution.

How We Got Here: The Long Road to the Supreme Court

Understanding the current status requires walking through a genuinely long timeline, since this case has moved through the courts over the better part of a decade.

The challenge before the Delhi High Court, brought by the RIT Foundation and other petitioners, argued that the exception discriminates against married women by denying them the same legal protection against non-consensual sexual acts that unmarried women receive — treating consent as legally irrelevant purely because of the existence of a marriage. On May 11, 2022, a two-judge bench delivered what became a genuinely rare outcome in Indian constitutional litigation: a split verdict.

Justice Rajiv Shakdher held the exception unconstitutional, finding it violated Articles 14, 15, 19(1)(a), and 21 of the Constitution — the guarantees of equality, non-discrimination, free expression, and personal liberty and dignity. His reasoning centred on the idea that a woman’s consent doesn’t cease to matter simply because she’s married, and that treating marital status as grounds for exempting non-consensual acts from the definition of rape couldn’t be reconciled with a woman’s constitutionally protected bodily autonomy.

Justice C. Hari Shankar reached the opposite conclusion, holding that the exception rested on an “intelligible differentia” — a recognised legal standard for testing whether a classification survives an equality challenge — reasoning that sexual relations within marriage carry a different legal and social character than those outside it, and that this distinction had a rational connection to the purpose of the provision. Both judges granted the petitioners permission to appeal directly to the Supreme Court, recognising the case’s obvious constitutional significance.

Separately, in Karnataka, a different fact pattern reached the courts through Hrishikesh Sahoo v. State of Karnataka, where a husband facing rape charges alongside other serious allegations sought to have the case against him dismissed by relying on the marital exception. The Karnataka High Court rejected that argument directly, holding that “rape is rape” regardless of the relationship between the parties, and allowed the prosecution to proceed. That ruling was itself appealed, and the Supreme Court temporarily stayed the Karnataka High Court’s decision to allow the trial to proceed, while the broader constitutional question remained pending.

The matter has moved slowly since. Hearings before the Supreme Court began in 2024 under then-Chief Justice D.Y. Chandrachud, and in October 2024, the Union Government filed a detailed affidavit for the first time taking a substantive position opposing removal of the exception, arguing that criminalising marital rape would be “excessively harsh” and could destabilise marriages. Following Chief Justice Chandrachud’s retirement, the case was effectively paused while the bench was reconstituted. As of the most recent scheduling development, the Court — now under Chief Justice Surya Kant — has indicated it will hear from the Union Government before fixing a final date for substantive arguments, with a batch of eight matters now before it, including both the original Delhi High Court appeals and newer petitions filed since.

The Case for Striking Down the Exception

The arguments in favour of removing the exception rest fundamentally on the principle that consent — not marital status — should determine whether a sexual act is criminal. Advocates for this position argue that the purpose of rape law is to protect bodily autonomy and dignity, not to preserve the institution of marriage, and that carving out an exemption purely because two people are married treats a wife’s consent as permanently and irrevocably given at the moment of marriage, regardless of her actual, ongoing wishes.

This position also draws on comparative context — a substantial number of countries have removed similar exceptions from their own criminal codes over the past century, with some of the earliest changes dating back to the 1920s and 1930s, and a majority of countries surveyed by international human rights organisations having criminalised marital rape in some form. Petitioners have also pointed to the inconsistency the 2017 Independent Thought ruling already partially addressed — if consent matters enough to protect a minor wife, the argument goes, the underlying principle should logically extend to protecting the consent of an adult wife as well.

The Case for Retaining the Exception

The arguments on the other side are not simply about preserving tradition — they raise genuine, substantive concerns that courts have taken seriously. Justice Hari Shankar’s reasoning framed marriage as creating a distinct set of legal and social expectations around sexual relations, different in character from relations between unrelated parties, and argued that this distinction could survive constitutional scrutiny without being treated as arbitrary discrimination.

The Union Government’s position, laid out in its 2024 affidavit, raised additional concerns — that criminalising marital rape could be used as a tool for harassment or leverage within already-contentious matrimonial disputes, echoing concerns that have been raised for years about the misuse of provisions like Section 498A, and that such a fundamental change to the legal treatment of marriage warranted legislative consideration by Parliament, reflecting broader societal consensus, rather than being imposed through judicial interpretation alone. This is, notably, close to the position Justice Hari Shankar himself expressed — that this was fundamentally a matter for Parliament to address through legislation, rather than something the judiciary should resolve by striking down the provision.

The Misuse Concern, Examined Fairly

This particular argument deserves its own careful treatment, since it comes up so frequently in public discussion of this case and is genuinely central to the government’s stated position. The concern is that criminalising marital rape could add a serious criminal allegation to the existing landscape of matrimonial disputes, where allegations under other provisions — most notably Section 498A / Section 85 BNS — have long been subject to debate about the frequency of exaggerated or strategically timed complaints, particularly where they surface alongside contested divorce, custody, or maintenance proceedings.

Those in favour of removing the exception generally respond to this concern in one of two ways: either by arguing that the possibility of misuse exists for virtually every criminal provision and isn’t, by itself, a sufficient reason to deny a genuine remedy to those who need it, or by suggesting that any new provision could be drafted with specific procedural safeguards — similar to those introduced over the years for Section 498A itself, such as preliminary inquiry requirements before arrest — designed to filter out weaker or bad-faith complaints without eliminating the underlying protection entirely.

Those defending the exception, including in the government’s own submissions, have treated this concern as a more central, structural objection — arguing that introducing an entirely new and serious criminal allegation into the always-difficult territory of marital breakdown carries risks that procedural safeguards alone may not fully address, and that this is precisely the kind of complex trade-off better suited to extended legislative deliberation than a single judicial ruling.

Both positions reflect genuine, considered concerns rather than bad-faith arguments, and this tension — between providing a meaningful remedy and guarding against misuse in an already contentious area of law — sits at the heart of why this case has been so difficult to resolve.

What the Legal Position Actually Is Right Now

This is the part that matters most practically, and it’s worth being completely clear about it: as of today, Exception 2 remains valid, operative law. The Supreme Court has not struck it down, and the matter remains sub judice — meaning it’s still actively before the courts and undecided. Lower courts, including Family Courts and criminal courts, are bound to apply the law as it currently stands, which means a rape charge specifically premised on non-consensual sexual relations between a husband and his adult wife cannot currently proceed under this exception, regardless of how any individual judge might personally view the underlying constitutional question.

This is exactly why the Supreme Court’s earlier stay of the Karnataka High Court’s ruling in the Hrishikesh Sahoo matter is significant — it shows the Supreme Court itself treating the constitutional question as genuinely unresolved and reserved for its own final determination, rather than allowing individual High Courts to resolve it differently in the meantime.

What Doesn’t Change, Regardless of How This Is Eventually Decided

It’s worth understanding that this exception’s existence doesn’t mean Indian law provides no recourse at all for non-consensual or abusive conduct within a marriage — several other legal avenues already exist, independent of how this specific constitutional question is ultimately resolved.

Cruelty as grounds for divorce under Section 13(1)(ia) of the Hindu Marriage Act already recognises a broad range of conduct, and courts have shown willingness to treat sustained, non-consensual sexual conduct within a marriage as relevant to a cruelty finding, even though it doesn’t carry the same criminal consequences a rape conviction would.

The Protection of Women from Domestic Violence Act, 2005 defines domestic violence broadly enough to include sexual abuse, and a wife facing this kind of conduct can pursue protection orders, residence orders, and compensation under that framework — our detailed guide on Section 22 compensation under the DV Act covers how that specific remedy works, including the kind of monetary accountability it can result in.

Physical violence accompanying non-consensual acts can independently support charges under other provisions not affected by the marital exception, since the exception specifically addresses the act of intercourse itself, not accompanying physical assault or injury.

Where This Might Be Headed

Given the extended timeline this case has already followed — a split verdict in 2022, years of subsequent delay, a change in the Court’s composition, and a substantive government position only formally filed in late 2024 — it’s genuinely difficult to predict when a final resolution will actually arrive. The September 9, 2026 hearing is specifically to determine scheduling for final arguments, not to decide the substantive question itself, which suggests a definitive ruling likely remains some way off even now.

What’s worth watching for going forward: whether the Union Government’s position evolves or remains fixed, how the reconstituted bench approaches the balance between the constitutional arguments and the government’s institutional concerns, and whether the eventual ruling — whichever direction it takes — includes specific safeguards addressing the misuse concerns that have been raised, given how much attention that issue has received in the broader public discussion around this case.

What This Means If You’re Currently in a Matrimonial Dispute

If you’re navigating a matrimonial matter right now, here’s what’s practically relevant while this case remains pending:

• The current law applies as written, meaning this specific exception remains a real, operative legal boundary in any matter you’re involved in today.
• Other remedies remain fully available regardless of this case’s outcome — cruelty as a divorce ground, and protection and compensation under the Domestic Violence Act, aren’t dependent on how this constitutional question is eventually resolved, and shouldn’t be overlooked simply because this specific criminal provision remains unsettled.
• This is a genuinely evolving area to watch, not a settled one. If your matter involves facts that could be affected by how this case is eventually decided, it’s worth having your lawyer keep track of developments specifically, since a final ruling — whenever it arrives — could have real implications depending on your specific circumstances.

Frequently Asked Questions

1. Is marital rape currently a crime in India?

Currently, no — Exception 2 to Section 375 IPC (and its equivalent under the Bharatiya Nyaya Sanhita, 2023) remains valid, operative law, meaning non-consensual sexual acts by a husband with his adult wife are not currently treated as rape under this specific provision. This is the exact question the Supreme Court has pending before it.

2. When will the Supreme Court actually decide this case?

There’s no confirmed date. The September 9, 2026 hearing is specifically to address scheduling for final arguments, not to decide the substantive constitutional question itself — a final ruling likely remains some time away.

3. What was the Delhi High Court’s actual ruling in 2022?

It was a split verdict — Justice Rajiv Shakdher held the exception unconstitutional, while Justice C. Hari Shankar upheld it as constitutionally valid. Both judges permitted the case to be appealed directly to the Supreme Court, which is where it currently remains.

4. Does this exception mean a wife has no legal recourse for non-consensual acts within marriage?

Not entirely — other remedies exist independently of this specific criminal provision, including cruelty as grounds for divorce and protection or compensation under the Domestic Violence Act, though neither carries the same criminal consequences a rape conviction under ordinary circumstances would.

5. What is the government’s official position on this issue?

The Union Government filed a substantive affidavit in October 2024 opposing removal of the exception, arguing that criminalising marital rape could be excessively harsh and potentially destabilise marriages, and suggesting this is a matter better addressed by Parliament through legislation than by judicial ruling.

6. What happens to this exception under the new Bharatiya Nyaya Sanhita?

The marital exception has carried forward into the current criminal code framework, meaning the transition from the old IPC to the BNS in 2024 didn’t resolve or change the underlying legal question — it remains exactly as contested as before.

7. Has any court in India actually allowed a marital rape prosecution to proceed?

The Karnataka High Court, in Hrishikesh Sahoo v. State of Karnataka, allowed a related prosecution to proceed, reasoning that “rape is rape” regardless of the relationship. That specific ruling was subsequently stayed by the Supreme Court while the broader constitutional question remains pending before it.

8. If the Supreme Court eventually strikes down the exception, would it apply to cases already decided?

This is a genuinely complex question that would likely depend on how the Court frames its ruling and from what date it’s made effective — a question the Court would need to address specifically if and when it reaches a final decision.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. It presents the current legal status and pending arguments in this matter factually and does not advocate for any particular outcome. Every case is fact-specific — consult a qualified advocate regarding your specific circumstances before taking any legal action .

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