On 11 May 2022, the Delhi High Court produced a constitutional document of unusual candour. Two judges, assigned the same legal question, whether Exception 2 to Section 375 of the Indian Penal Code, which decriminalises non-consensual sexual intercourse by a husband with his wife, violates the Constitution, gave diametrically opposite answers. Justice Rajiv Shakdher found the exception unconstitutional, holding that it violated Articles 14, 19, and 21. Justice C. Hari Shankar upheld it, finding that the distinction between married and unmarried women rested on intelligible differentia bearing a rational nexus to the object of the law. The matter has since moved to the Supreme Court.
The exception itself has colonial origins. Drawn from Matthew Hale's seventeenth-century common law principle that a wife's consent to marriage constitutes irrevocable consent to intercourse, the exception was embedded in the IPC by colonial administrators and carried forward into independent India's statute books with no deliberate constitutional scrutiny. The Bharatiya Nyaya Sanhita, 2023 (BNS), which replaced the IPC, retained the exception in almost identical terms under Section 63 Exception 2, despite the High Court proceedings and the broader public debate. The legislative choice to retain the exception while the constitutional question is pending before the Supreme Court reflects either institutional indifference to the issue or a deliberate political decision, neither of which is constitutionally satisfying.
Justice Shakdher's opinion is structured around the right to bodily integrity as a dimension of Article 21. The judgment draws on Justice K.S. Puttaswamy v. Union of India (2017), where the nine-judge bench recognised informational and physical autonomy as constituents of the right to privacy, and on Suchita Srivastava v. Chandigarh Administration (2009), which held that reproductive choice is a facet of personal liberty under Article 21. The logic is straightforward: if a woman's consent to marriage does not constitute consent to every medical procedure, every financial decision, or every future act of her life, there is no principled basis on which it constitutes irrevocable consent to sexual intercourse. The exception, on this view, does not merely fail to protect a right, it actively strips a category of women of a protection that the law otherwise grants to all persons.
Justice Hari Shankar's opinion proceeds from a different doctrinal starting point. It locates the marital rape exception within a legislative framework of social regulation and finds that the classification of married women as a distinct category is not arbitrary. The judgment argues that marriage creates a voluntary, legally recognised relationship of intimacy with distinct legal consequences across family law, property law, and personal law, and that Parliament is entitled to regulate sexual conduct within marriage differently from sexual conduct outside it. It also raises the familiar institutional competence concern: that the question of whether to criminalise marital rape involves complex social policy choices better resolved by Parliament than by constitutional adjudication.
Both positions are internally coherent. That is precisely what makes the split verdict significant. It is not the product of legal confusion. It is a conflict between two legitimate methodologies of constitutional interpretation: one that reads fundamental rights expansively and locates consent and dignity at the core of personal liberty, and one that defers to legislative classification where a rational basis can be identified and reserves judicial intervention for legislative choices that are manifestly arbitrary. The divergence maps onto a broader fault line in Indian constitutional adjudication between transformative constitutionalism, which uses rights to challenge social hierarchies embedded in law, and judicial deference, which treats legislative choices as presumptively valid unless demonstrably irrational.
The Supreme Court, when it hears the matter, will need to do more than choose between the two opinions. It will need to articulate, with clarity, what role consent plays in the architecture of the rape provisions and whether a distinction based on marital status survives the threefold proportionality test that increasingly governs equality review. The argument that Parliament has not acted, and therefore courts should not, is insufficient. The Constitution is not a delegation to Parliament to define which women deserve protection against sexual violence. Where the legislature has made a classification that denies equal protection on a ground connected to gender and status, the court's obligation is to adjudicate, not to wait.
The retention of the exception in the BNS also raises a separate question about legislative responsibility. Parliamentary committees scrutinising the BNS had before them the Delhi High Court's split verdict, extensive academic commentary, law reform recommendations from multiple jurisdictions including South Africa, UK, and Australia, and the specific submissions of women's rights organisations. The decision to retain Exception 2 was therefore not made in ignorance. It was made with full knowledge of the constitutional objection. The Supreme Court should treat that legislative choice as requiring justification, not deference. The test is not whether Parliament had reasons, it almost always does, but whether those reasons satisfy constitutional standards of equality, dignity, and proportionality.
The marital rape exception is sometimes discussed as a question about the future of Indian family law. It is more accurately understood as a question about the present state of Indian constitutional law. If the Constitution's guarantees of equality and personal liberty cannot reach a statutory provision that denies criminal protection to a defined category of women based on their marital status, then the transformative potential of the Constitution is significantly diminished. The Supreme Court's resolution of this question will signal, with considerable clarity, which vision of constitutional law India has chosen to inhabit.