The Supreme Court of India said on Wednesday that it will deliberate on the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code. This exception currently prevents non-consensual marital sex from being considered rape, raising concerns about the rights and protection of those involved.

A bench comprising Chief Justice DY Chandrachud, Justice PS Narasimha, and Justice Manoj Mishra will address the complex legal issues in these cases, which include appeals against the Delhi High Court’s split verdict and charges against a husband for forcing sex on his wife upheld by the Karnataka High Court.

Currently, the “exception” allows sexual intercourse by a man with his adult wife without considering it rape. Critics argue that this disregards a woman’s consent solely based on her marital status, thereby violating the Indian Constitution.

The origin of this exception lies in outdated beliefs that a woman’s consent becomes permanent upon marriage, obligating her to fulfill sexual duties solely for procreation. In contrast, other common law countries have abandoned the exception, subsequently choosing to criminalize marital rape.

The arguments against the exception primarily focus on the violation of fundamental rights protected by the Constitution, including equality, dignity, autonomy and personhood. Petitioners challenge the notion of “consent in perpetuity” and the expectation of sexual relations within marriage.

While the government defends marital rape immunity to protect men from potential misuse of the law and to preserve the institution of marriage, they do acknowledge the need for further deliberation. They point out that married women facing rape have alternative legal remedies such as divorce or filing domestic violence cases. Additionally, the validity of “restitution of conjugal rights” is also currently under review by the Supreme Court.