CONSENT WITHIN MARRIAGE: RETHINKING THE CONSTITUTIONAL VALIDITY OF THE MARITAL RAPE EXCEPTION

Originally enshrined in Exception 2 to Section 375 of the Indian Penal Code, 1860, and currently maintained in Section 63 of the Bharatiya Nyaya Sanhita, 2023, the marital rape exception in India shields husbands from criminal prosecution for engaging in non-consensual sexual relations with their wives, provided that the wife is under a certain age. This continuity shows how the concepts of coverture and irrevocable consent from the colonial era have persisted in Indian criminal law to this day. However, these clauses directly contradict the constitutional rights to equality, privacy, dignity, and bodily autonomy that are protected by Articles 14, 19, and 21 of the Constitution. Married women are still not fully protected against sexual violence, despite the fact that seminal cases like Justice K.S. Puttaswamy v. Union of India have upheld privacy and autonomy as fundamental rights. This study engages with comparative and international legal frameworks while critically examining the constitutional flaws, historical underpinnings, and judicial responses to the marital rape exception. It contends that the exception violates India's international human rights commitments, upholds patriarchal control in marriage, and compromises constitutional morality. Finally, it argues that consent cannot be assumed in a marriage and that rape must be recognised as rape regardless of the victim's marital status.