The argument over marital consent in India is not simply a clash between Hindu tradition and modern law. A British legal inheritance survived independence and then survived India’s attempt to replace its colonial criminal code.
A Question About Marriage Reaches Parliament
In February 2022, BJP parliamentarian Sushil Kumar Modi stood in the Rajya Sabha and raised a question that exposed something larger than a dispute over criminal law. If India criminalised marital rape, he argued, it could end the institution of marriage. He also questioned how courts would determine whether consent existed between husband and wife.
I keep returning to that argument because it reveals where the real conflict lies. The issue is not whether sexual violence is wrong. Even the Indian government accepts that marriage does not erase a woman’s consent. The dispute begins when the law asks whether forced sex by a husband should carry the same legal name as forced sex by another man.
India’s answer, for now, remains no.
Section 63 of the Bharatiya Nyaya Sanhita defines rape partly through the absence of consent. Yet Exception 2 says that sexual intercourse or sexual acts by a man with his own wife, provided she is not under eighteen, do not constitute rape. The new criminal code came into force on 1 July 2024.
That contradiction deserves attention. But its origins are often misunderstood.
The Exception Did Not Begin With Hindu Law
It is tempting to explain India’s marital-rape exception through Hindu patriarchy. That explanation is incomplete.
The criminal-law exemption came into modern Indian law through the Indian Penal Code of 1860, enacted under British rule. Its intellectual ancestry can be traced to English common law and the writings associated with jurist Matthew Hale, who argued that a wife gave a form of continuing sexual consent when she married. That doctrine influenced the historical marital-rape exemption in common-law systems.
British India carried the principle into its penal code. Section 375 recognised intercourse against a woman’s will or without consent as rape, but created an exception when the woman was the perpetrator’s wife. The qualifying age changed over time, yet the structure survived.
That history changes the argument considerably.
The marital-rape exception is not a rule that travelled directly from the Manusmriti into the modern Indian penal code. It is a colonial criminal-law inheritance. Hindu attitudes towards marriage can help us understand the social environment in which the exception survives, but they do not explain its legal origin.
Independent India then made its own choices.
In 2000, the Law Commission examined rape law in its 172nd Report and did not recommend removing the marital exception. After the 2012 Delhi gang rape triggered a national crisis, the Justice J.S. Verma Committee reached the opposite conclusion. It recommended abolishing the exception and stated that marriage should not amount to irrevocable consent to sexual acts.
Parliament changed large parts of India’s sexual-offence law in 2013. It did not accept that recommendation.
The distinction matters. Britain may have supplied the legal inheritance. India repeatedly chose to keep it.
Hindu Tradition Is More Complicated Than the Political Argument
Religion still belongs in this discussion, but it must be handled carefully.
Ancient Hindu literature emerged across long periods and contains different genres of text. The Vedas cannot simply be placed in the same legal category as the Dharmashastras. Nor can the Manusmriti be treated as though every Hindu community followed every verse as a uniform civil code.
Some texts nevertheless reflect unmistakably patriarchal assumptions.
The Manusmriti, for example, contains the famous injunction that a woman should remain under male protection during different stages of her life and should not live independently. Yet the historical position was not equivalent to saying women possessed no property rights whatsoever. Hindu legal traditions recognised stridhan, property belonging to women, although women’s inheritance rights remained heavily restricted compared with men’s.
A more troubling passage appears in the Brihadaranyaka Upanishad, 6.4.7. One established translation describes a wife refusing her husband’s approach and says that, if she remains unwilling, he should strike her with his hand or a stick before proceeding. Other Hindu interpreters dispute how the Sanskrit and ritual context should be understood, which itself shows why a single verse cannot safely be converted into a universal doctrine of Hindu marriage.
The passage deserves scrutiny. It does not prove that India’s present rape law originated in Hindu theology.
Modern Hindu family law also looks very different from ancient prescriptions. The Hindu Marriage Act of 1955 codified marriage law and provided for judicial separation as well as divorce. Property and succession developed under separate legislation, including the Hindu Succession Act of 1956, which recognises a female Hindu’s property as her absolute property.
India has therefore spent decades rewriting parts of the legal relationship between husband and wife. The marital-rape exception survives inside that transformed landscape.
That is what makes it unusual.
The BJP Government Had a New Choice
The Modi government’s role should also be described precisely.
The BJP did not invent India’s marital-rape exception. Congress-led governments lived with it too. Previous commissions considered the issue, and Parliament declined the Justice Verma Committee’s recommendation in 2013.
The BJP-led government nevertheless faced a different moment.
It decided to replace the 164-year-old Indian Penal Code with the Bharatiya Nyaya Sanhita. The project carried an unmistakable decolonising message. India would discard the language and institutional symbolism of a British-era criminal code and create its own framework.
Yet when Parliament enacted the BNS in 2023, the marital exception remained. PRS Legislative Research specifically noted that the new law retained the old rape provisions on this point and did not adopt the Verma Committee recommendation to remove the exception.
This was no longer simply inertia inside an untouched Victorian statute. Parliament had opened the criminal code, rewritten it and enacted a replacement. It had the opportunity to remove the exemption and did not do so.
The Union government’s later argument before the Supreme Court made its reasoning clearer.
In a 2024 affidavit, the Centre accepted that a husband has no fundamental right to violate his wife’s consent. But it argued that applying the offence of rape within marriage could be “excessively harsh” and disproportionate. The government said other legal remedies already protect married women and maintained that marriage creates a situation that the criminal law may treat differently.
That is the central dispute stripped of rhetoric.
The government is not saying consent disappears at marriage. It is arguing that the legal consequence of violating consent may depend on whether the perpetrator is the woman’s husband.
For critics of the exception, that distinction is precisely the constitutional problem.
The Battle Has Moved to the Constitution
The Supreme Court has been asked to determine whether the marital-rape exception can coexist with constitutional guarantees.
The challenges rely heavily on Article 14’s promise of equality and Article 21’s protection of life and personal liberty. Petitioners argue that a married woman should not receive weaker criminal-law protection from non-consensual sex merely because the perpetrator is her husband. The litigation has travelled through conflicting judicial decisions and has yet to produce a final Supreme Court resolution. The legal controversy therefore remains alive in 2026.
Parliament has not disappeared from the struggle either.
In December 2025, Congress MP Shashi Tharoor introduced a private member’s bill seeking removal of the marital-rape exception. He described the exemption as a colonial relic and argued that marriage cannot eliminate bodily autonomy. A private member’s bill faces formidable odds without government backing, but its introduction matters because it puts Parliament’s responsibility back into the debate.
The political arithmetic is therefore more complicated than a simple BJP-versus-reform story. The exemption survived under earlier governments. The present government inherited it, consciously retained it during a major recodification and now defends the distinction before the Supreme Court.
That sequence is more revealing than a claim that Hindu nationalism alone created the problem.
What the Numbers Can and Cannot Tell Us
Statistics require equal caution.
India’s National Family Health Survey does not provide a simple count of “marital rape” that can be compared with police rape statistics. Its categories measure different forms of spousal violence, while the criminal code uses a separate legal definition.
NFHS-5 nevertheless shows the scale of violence inside marriage. Government health statistics report that 29.2 percent of ever-married women aged 18 to 49 said they had experienced physical or sexual spousal violence. That figure must not be presented as a marital-rape rate, but it makes one fact difficult to ignore: violence within marriage is not a marginal phenomenon.
The criminal statistics contain a built-in blind spot. If the alleged perpetrator is an adult woman’s husband and the marriage exception applies, the act does not enter the rape category in the same way as an equivalent act committed by someone else.
Law shapes statistics before statistics begin to describe society.
That is why comparing recorded rape cases with survey estimates can mislead. The categories themselves reflect the legal distinction under dispute.
The Argument Has Entered Popular Culture
Court cases rarely change social assumptions by themselves.
In March 2026, the JioHotstar series Chiraiya, starring Divya Dutta, brought marital rape directly into popular entertainment. Its story confronts the assumption that marriage creates permanent sexual consent and places the private violence of marriage before a mass audience.
I find that development important because law often moves after vocabulary changes.
A society first needs language for an experience. People then argue about whether the experience is private misconduct or a public wrong. Criminal law usually enters much later, after the argument has already escaped the courtroom.
India appears to be somewhere in that uncomfortable middle stage.
India Decolonised the Code, but Not This Exception
The marital-rape debate is therefore not a clean contest between an ancient religion and a modern Constitution.
Hindu traditions contain patriarchal material that cannot simply be wished away. They also contain competing interpretations and a long history of legal change. Modern India’s criminal exception, however, arrived through British law and survived because governments after independence repeatedly chose not to remove it.
The Modi government made that choice more visible.
It replaced the Indian Penal Code with legislation presented as an Indian alternative to colonial criminal law. Yet Exception 2 survived almost at the very point where the state was deciding what should remain and what should disappear.
India now has a rape law that says consent matters, while marriage changes what happens when that consent is violated. The government says the distinction protects the institution of marriage from an excessively harsh criminal response. Petitioners ask why marriage should alter the legal character of the same unwanted sexual act.
The Supreme Court has not supplied the final answer.
For the moment, the more uncomfortable fact sits inside the statute itself. India removed the colonial name from its criminal code. On marital consent, it kept the exception.
This post is part of an ongoing series on law, society and human rights. AI assistance was used in research and drafting; editorial judgement and framing are the author’s own.
