Regarding marital rape, Supreme Court questions whether courts can prosecute what the state does not define as “rape”

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The Supreme Court on Wednesday (9 Sep 2026) guaranteed safety and security to sexually abused married women, but questioned whether courts can prosecute spousal rape when the Criminal Code exempts marital rape from criminal liability.

A three-judge bench headed by Chief Justice of India (CJI) Surya Kant gave voice to the critical dilemma of Constitutional Courts going out of their way to support the prosecution of spouses for a currently non-existent crime.

The court pointed out that while it recognized the individual autonomy of married women, the second exception to Section 375 of the Indian Penal Code (IPC) states that “intercourse or sexual acts by a man with his own wife, where the wife is not under 15 years of age, is not rape”. Section 63 of the Bharatiya Nyaya Sanhita Act, which replaced the IPC in 2023, carried over the exemption granted to marital rape under Section 375, although it raised the statutory age limit for the wife to 18 years.

Criminal law

“This is the law as it is, rightly or wrongly. It is a criminal law. Before the Constitutional Court gives a verdict that the exemption is unreasonable or manifestly arbitrary, can we allow prosecution in this regard? Is it within the power of the public prosecutor to prosecute a person if there is a clear exemption under Section 375 or Section 63,” questioned Justice Joymal.

The primary case before the Bench is an appeal filed against a 2022 decision of the Karnataka High Court which held that a husband could be charged with rape if he forced himself on his wife. The Supreme Court relied on the 2013 Justice JS Verma Committee report which found the exemption regressive. The Supreme Court Bench observed that “a man is a man; an act is an act; rape is rape whether committed by a man, a ‘husband’ on a woman ‘wife’. It noted that “no exemption from the law can be so absolute as to become a license to commit a crime against society”.

But the Supreme Court on Wednesday (September 9, 2026) questioned the high court’s logic.

“Can a court order a prosecution until the constitutional validity of the exemption is reviewed and, if necessary, declared ultra vires or read down. Right now, it is the law, constitutional or otherwise,” Judge Bagchi argued.

Definition of rape

While Justice Bagchi agreed that “a person in a marriage subjected to involuntary intercourse is definitely a victim”, he said “the question before us is whether the State defines it as ‘rape’ or not”.

The court argued that it could be up to the legislature to decide whether an act should be a crime.

Senior advocate Indira Jaising, appearing for the wife in the Karnataka case, said there was enough flexibility to interpret the current law to justify the Supreme Court’s decision to order rape prosecution.

“The wife was treated like a sex slave. The husband must be prosecuted regardless of the spousal rape exception… My effort before this court would be how to interpret the existing law,” Ms Jaising said.

She also noted that the age of consent in Section 63 had been raised from 16 to 18. “Now even consensual sex between 16 and 18 is actionable. It hasn’t been like that for 180 years,” Ms Jaising said.

Advocate General Tushar Mehta, for the union government, said the spousal rape exemption must continue until the Supreme Court decides on its adequacy.

In October 2024, the center submitted an affidavit that punishing a man’s involuntary sexual acts with his own wife as “rape” would only affect the marital relationship and lead to “serious disturbances” in the institution of marriage.

Apart from the Karnataka High Court, a division bench of the Delhi High Court also delivered a conflicting verdict on the issue of criminalizing marital sexual abuse. While one judge on the bench said it would be “tragic if a married woman’s cry for justice goes unheeded”, another differed, arguing that the exemption was based on an “intelligible difference”.

The Supreme Court agreed to hear the “live” Karnataka case as the first followed by petitions challenging the constitutionality of the marital rape exemption.

Published – 9 Sep 2026 20:55 IST