Written by Areeba,
Lex Lumen Research Journal Summer Intern,
June 2026
When a man uploads an intimate video of his wife without her knowledge, and his defence is “she is my wife,” you have to ask: what exactly does marriage mean in this country?
Not long back, the High Court of Allahabad was hearing a petition filed by a husband who wanted to quash an FIR against him. His wife had filed the complaint after he allegedly filmed her and shared the video on social media and with one of his cousins. His argument was simple: “She is my wife.” Justice Vinod Diwaker didn’t let that reasoning breathe for long. The court held that a wife’s body is her property, not her husband’s to record, disperse, or control; his role is not that of a master or owner but of an equal partner bound to respect her autonomy. It should not take a High Court judgment to establish this. Yet here we are.
The Ghost of Sir Matthew Hale
The root cause of this problem can be traced back to the 17th century, when an English judge wrote that “a husband can’t be made guilty of rape committed by him upon his wife” by giving the reasoning that a woman gives an irrevocable consent to sex with her husband upon entering into a marriage, a consent that can never be taken back. Sir Matthew Hale wrote this opinion in 1736[1]. Today it is 2026. And yet Exception 2 of Section 63 of BNS still reads that sexual intercourse by a husband with his wife is not considered rape, provided that she is not under 18 years of age.[2] We updated the colonial code. Yet we kept this idea alive.
THIS IS THE PROVISION THAT REFUSES TO DIE. Parliament had an opportunity to update it while enacting the new criminal laws in 2023, but carried the same immunity forward, only raising the age threshold to eighteen, following Independent Thought v. UOI, keeping the exception intact.[3]
It is not a colonial accident that nobody noticed. The Justice Verma Committee, formed after the 2012 Nirbhaya Gang Rape, recommended changes in the sexual assault law, especially the removal of the marital rape exception. Parliament enacted the Criminal Law Amendment Act of 2013 based on these recommendations, but left Exception 2 untouched,[4] making the message very clear that this was not worth the reform. The doctrinal basis for the exemption can be traced back to Hale’s idea that marriage itself had no independent legal existence under the doctrine of coverture. In India, we call it a legal inheritance that we choose not to return.
What “Implied Consent” Actually Means
If I follow the same logic of implied consent, it means that the moment a woman signs her marriage registration, she approves every sexual act that her husband ever initiates, despite her feelings, health, circumstances, or even refusal on any day. However, consent in every other legal context – contracts, medical treatment, or criminal law – must be free, specific, and revocable. Once misrepresentation, coercion, or undue influence is involved, consent is no longer valid. Except, apparently, in marriage.
It is not a legal inconsistency. It is rather a structural message that the law sends to society: that a wife’s sexuality belongs to her husband upon the marriage contract. The NFHS-5 found that about 6% of married women are sexually abused by their husbands, and 29-32% reported physical or sexual violence by an intimate partner over their lifetime. Only about 10% of victims formally report spousal sexual abuse; the true scale stays invisible because the law, their families, and their communities had consistently told them it was not a crime.
The Constitutional Problem Nobody in Parliament Wants to Solve
The Apex Court in K.S. Puttaswamy v. UOI held that privacy is the fundamental right of the individual under Article 21, which also includes decisional autonomy over one’s own body.[5] In Suchita Srivastava v. Chandigarh Administration, the court held that a woman’s right to make her own reproductive choices is a dimension of personal liberty.[6] In Joseph Shine v. UOI, the Supreme Court has struck down adultery on the express ground that treating a woman as her husband’s property violates Articles 14, 15 & 21.[7]
Each of these landmark judgments chips away at the same patriarchal foundation the marital rape exception stands on, yet the exception survives. It draws a line based purely on marital status: the unmarried women can invoke the full protection of rape laws; the married women cannot. It is challenging to articulate a constitutionally legitimate basis for this distinction that may survive the judicial scrutiny required by Articles 14, 15 & 21.
What the Courts Have Said – And What They Haven’t
Indian courts have edged towards recognition but have never fully done so. In Hrishikesh Sahoo v. State of Karnataka, the High Court of Karnataka permitted a husband to be prosecuted under Section 375 IPC, holding the exception is not absolute. Justice M. Nagaprasanna wrote perhaps the most quoted line on this subject: “A man is a man, an act is an act, rape is a rape, be it performed by a man who is a husband on his wife.”[8]
The Supreme Court has made a limited yet significant move in X v. Principal Secretary, the medical termination of pregnancy case, stating that an unwanted pregnancy arising from forced sex within marriage constitutes rape under the MTP Act. Justice D. Y. Chandrachud painfully stated that a wife’s sexuality is not the property of her husband and that by marrying, she has not consented to being refrained from making her own sexual choices. However, this observation has not ruled out Exception 2; rather, it articulated a constitutional principle that is in direct tension with it.[9] On the other hand, the judges of the High Court of Delhi in this case held differing views – one judge upheld the unconstitutionality of Exception 2, while another defended it.
The Arguments Against Reform, Examined
Opposition to the criminalising of marital rape rests on two main arguments. The first is that it will destabilise marriage as an institution. The second is that wives will misuse it to file false charges against husbands.
Neither holds up. The first assumes that functioning marriages somehow depend on the husband’s legal immunity from rape charges. This is not how a healthy marriage works. Legal reforms would not force spouses to treat each other differently; they would simply extend to married women the same legal protection that every other citizen already enjoys. The UK, the USA, Canada, South Africa, Australia, and many others have criminalised marital rape, with no sign that their marriage rates have collapsed or their family structures have dissolved.[10]
The second one: the fear of false cases applies to every provision of criminal law. We have not repealed laws against domestic violence, dowry harassment, or workplace sexual harassment, even though someone could theoretically misuse them. The Supreme Court’s response to these misuse concerns has consistently been to build in procedural safeguards – not to leave victims without a remedy. Given how heavily marital rape goes underreported in India – amid stigma, financial dependence, fear of family rejection, and lack of legal support- making misuse the primary concern badly misjudges the proportions of the problems.
The Protection of Women from Domestic Violence Act, 2005, includes sexual abuse within its definition of domestic violence and offers civil remedies, treating marital rape as a civil wrong rather than a crime, telling every survivor, and every potential perpetrator, how seriously the state takes the violation.
What the Allahabad Judgement is Really Saying
The Allahabad ruling in the video case did not involve rape but a non-consensual distribution of a video recording. The principle it restated – that a wife’s body, privacy, and choice are her own and that the husband’s role is not that of master or owner but of an equal partner – is precisely the principle that the marital rape exception contradicts every single day. The court’s reference to K.S. Puttaswamy was deliberate: the right to make decisions about one’s own body is not a Western import. It is a constitutional guarantee that every Indian woman already holds. The criminal law simply refuses to honour this constitutional right once a woman is married.
This gap between constitutional principle and legislative reality is not an accident. It is a choice. And it is one that Parliament renews every time it declines to amend Section 63 of the Bharatiya Nyaya Sanhita (BNS).
The Unfinished Business
India has signed CEDAW, which obligates states to eliminate discrimination against women in marriage and family life, including protecting the right to freely consent to sexual activity. The UN Declaration on the Elimination of Violence Against Women also recognises sexual violence within marriage as a human rights violation, which states have a duty to prevent and address. The distance between what India promised the world and what it offers to its women domestically is again a political choice.
Repealing Exception 2 of Section 63 is the necessary first step – not the whole answer, but the one without which nothing else will work. The definition of consent in criminal law needs to be reframed as affirmative, continuous, and revocable. Judges, police and medical professionals need training, and survivors need counselling and protection from secondary victimisation.
Constitutionally, a wife has full ownership of her own body – a principle that the Supreme Court has affirmed in several judgments. The real issue is when criminal law will reflect this reality and when Parliament will stop using marriage as a shield to withhold from women one of the most fundamental legal protections.
Marriage is not a licence. It never was.
References
- Sparsh Upadhyay, Husband Can’t Claim Ownership of Wife’s Body, Privacy, Her Consent Paramount; Sharing Intimate Acts’ Video a Breach of Trust: Allahabad HC, LiveLaw (Jan.2, 2025), https://www.livelaw.in/high-court/allahabad-high-court/allahabad-high-court-husband-wife-relationship-onwership-privacy-intimate-videos-public-trust-279785.
- Ankitha S. Krishnan, Marital Rape and the Myth of Implied Consent: A Legal Analysis in the Indian Context, 5 Indian J. Integrated Rsch. L. (Issue II, 2025). https://ijirl.com/wp-content/uploads/2025/05/MARITAL-RAPE-AND-THE-MYTH-OF-IMPLIED-CONSENT-A-LEGAL-ANALYSIS-IN-THE-INDIAN-CONTEXT.pdf
- Pratyush Sharma, Consent in Marriage: A Legal Fiction or Reality in Indian Criminal Law?, 8 Indian J. L. & Legal Rsch. (Issue II 2025), https://www.ijllr.com/post/consent-in-marriage-a-legal-fiction-or-reality-in-indian-criminal-law.
- Das, P., M. Gupte, M. Sahu, S. Nagesh & Tackling Gender-Based Violence in Public Health Workplaces in India: A Call for Systemic Change, PLOS Glob. Pub. Health 5(3): e0004327 (2025), https://doi.org/10.1371/journal.pgph.0004327
- UN Women, Global Database on Violence Against Women (2024), https://evaw-global-database.unwomen.org.
[1] Matthew Hale, The History of the Pleas of the Crown (1736)
[2] Bharatiya Nyaya Sanhita, 2023, Section 63 and Exception 2
[3] (2017) 10 SCC 800
[4] Justice Verma Committee Report, Government of India, January 2013; Criminal Law (Amendment) Act, 2013
[5] (2017) 10, SCC 1
[6] (2009) 9 SCC 1 and (2009) 14 SCR 989
[7] AIR (2018) SC 4898
[8] (2022) SCC OnLine Kar 371
[9] (2022) SCC OnLine SC 1321
[10] R v. R, [1991] 1 A.C. 599 (H.L.) (Eng.).
