TRACING THE SHIFT FROM COVERTURE TO CONSENT: A CRITICAL ANALYSIS OF THE MARITAL RAPE EXCEPTION UNDER SECTION 375 IN INDIA WITH SPECIAL REFERENCE TO CONSTITUTIONAL MORALITY

Exception 2 to Section 375 of the IPC, which is now continued as Section 63 in the Bharatiya Nyaya Sanhita, 2023, states that a husband is not punished for rape committed against his wife. In this paper, I examine this exception in a simple socio-legal way. I first explain its origin from old English law, especially the idea of coverture and the statement given by Sir Matthew Hale in 1736, which did not have strong legal basis. Then, I analyse whether this exception goes against the fundamental rights given under Articles 14, 15, and 21 of the Indian Constitution. I also apply the concept of constitutional morality, as discussed by the Supreme Court in Navtej Singh Johar v. Union of India (2018). For better understanding, I use data from NFHS-5 (2019–21), the Justice J.S. Verma Committee Report (2013), and the split judgment of the Delhi High Court in RIT Foundation v. Union of India (2022). I further compare the laws of countries like the UK, Canada, Australia, USA, and South Africa, where marital rape is already treated as a crime. Finally, I conclude that this exception is unfair and unconstitutional, and I suggest that proper legal and policy changes are needed.