THE MARITAL RAPE EXCEPTION UNDER THE BHARATIYA NYAYA SANHITA, 2023: A CRITICAL ANALYSIS

The Bharatiya Nyaya Sanhita, 2023, was introduced as a major reform of India’s colonial criminal law. While it expands the definition of rape and adopts more victim-centred language, it retains the marital rape exception under Section 63. This article critically examines the exception’s historical roots, its continuity from the Indian Penal Code, and its implications under the Constitution. It analyses how the provision conflicts with the rights to equality, non-discrimination and dignity under Articles 14, 15 and 21. Drawing on comparative experiences from other jurisdictions, and arguments for and against criminalisation, the paper highlights the socio-legal harm caused by the exception and the gaps in existing remedies. It concludes by proposing targeted legislative reforms and complementary measures that would align Indian criminal law with constitutional values and international standards on consent and gender justice.