Article At A Glance
- Marital rape for wives over 18 remains exempt under BNS, creating a major legal gap.
- Forced oral/anal sex is not defined as rape, leading to unsafe “legal voids” for survivors.
- Courts across India are questioning these gaps, with the Supreme Court reviewing the constitutionality of Exception 2.
- Survivors can still pursue justice through cruelty, assault, DV Act remedies, and BNSS procedural protections.
Consent is Sacred – Even in Marriage
Under India’s new criminal laws, the Bharatiya Nyaya Sanhita (BNS), 2023, and Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, marital rape remains a glaring gap. Exception 2 to Section 63 BNS shields husbands from rape charges for non-consensual vaginal intercourse with wives over 18. But forced unnatural sex? A legal void exists, sparking PILs and High Court scrutiny.
This violates Articles 14 (equality), 15 (non-discrimination), 19 (freedom), and 21 (bodily integrity) of the Constitution. We challenge these in court and advocate for reform. The Supreme Court is hearing petitions to strike down the exception – justice may soon evolve.
Legal Position Under BNS (As of December 2025)
| Act by Husband on Wife (Adult, >18 Years) | Is it Rape u/s 63 BNS? | Punishment Under BNS | Key Notes / Challenges |
| Forced vaginal intercourse | No (Exception 2, S.63) | Not rape; but cruelty u/s 85 (ex-498A) or DV Act | SC hearings ongoing; PILs argue unconstitutional |
| Forced oral sex (non-consensual) | Not defined as rape | Legal void; possible u/s 64 (aggravated assault) or 115 (hurt) | Delhi HC (Aug 2024) questions omission of ex-S.377 IPC; PIL for inclusion |
| Forced anal sex (non-consensual) | Not defined as rape | Legal void; attempt grievous hurt u/s 117/118 | Affects LGBTQ+; HC seeks Centre’s stand on non-consensual acts |
| Use of objects/extreme violence | Not rape | Grievous hurt u/s 117/118; up to life if death caused | Kerala/Delhi HCs award sentences; ties to S.64 if “sexual” |
| Wife under 18 years | Yes – Statutory rape | S.64: Min. 20 yrs RI to life/death | Independent Thought (2017) upheld; no exception |
| Separated wife (non-consensual sex) | Yes, but lighter penalty | S.67: 2-7 yrs RI | Lower than standard rape (10 yrs min.); challenged as discriminatory |
Key Changes from IPC:
- Age threshold raised from 15 to 18 (progressive, but exemption persists).
- No explicit “unnatural offences” (ex-S.377 IPC) in BNS – non-consensual acts fall into general hurt/assault provisions, creating uncertainty. Delhi HC (2024) flagged this as a “critical void” for vulnerable groups.
Landmark Judgments & Recent Developments (2024-2025)
- Supreme Court (Ongoing, Oct 2024-2025):
Three-judge bench (CJI Chandrachud) hearing petitions by AIDWA & others to strike Exception 2, S.63 BNS. Argues it denies bodily autonomy; Centre seeks time for policy review. Next hearing expected early 2026.
- Delhi HC (Aug 2024):
Queried Centre on unnatural sex omission in BNS; listed for Aug 2025 follow-up. Emphasized need for non-consensual protection.
- Chhattisgarh HC (2023, upheld 2025):
Reiterated marital acts “not rape”; sparked outrage, but aligns with BNS exception.
- Allahabad HC (2024):
Non-consensual unnatural acts punishable as assault; progressive but limited.
- Gujarat HC (2024):
Awarded ₹50L compensation + divorce for forced anal sex as “mental cruelty” under family law.
We reference these in filings to push boundaries until SC rules.
Procedural Safeguards Under BNSS for Survivors
BNSS (replacing CrPC) streamlines justice for sexual violence, though marital cases often hit the exemption wall. Key provisions empower victims:
- FIR & Investigation (Ch. XII BNSS):
- Zero FIR anywhere; mandatory registration (S.173). Female officer for sexual offences.
- 60-90 day probe completion; audio-video recording mandatory. For marital cases, frame as assault u/s 115/117 BNS if not rape.
- Medical Examination & Evidence (S.184/393 BNSS):
- Consent-based; free to victim. Digital evidence (BSA) includes emails/SMS proving non-consent.
- For unnatural acts: Forensic kits for injury proof; ties to S.64 if escalated.
- Trial & Protection (Ch. XXIV BNSS):
- In-camera trials; victim screens/cross-exam limits. Timelines: Charge sheet in 60 days; trial in 2 years.
- Protection orders under DV Act integrated; residence rights preserved.
- Bail & Appeals:
- Non-bailable for rape/assault; victim notice mandatory on bail (S.479). Speedy appeals.
These apply even in marital contexts – we use them for parallel cruelty/DV filings.
How We Help Survivors Navigate BNS/BNSS
- Criminal Filings
- FIR u/s 117/118 BNS (hurt), 85 (cruelty), or 64 (if applicable). Private complaints if police resist.
- Challenge refusals via S.175 BNSS (Magistrate direction).
- Urgent Relief
- Protection/residence orders under DV Act + BNSS timelines.
- Medical/forensic support; evidence collection.
- Family & Compensation
- Divorce on cruelty grounds (HMA S.13); maintenance ₹25–75L (recent awards).
- PIL support for constitutional challenges.
- Advocacy
- Part of SC interventions; amicus in HC PILs on unnatural sex.
Take the First Step Toward Justice — Connect With a Lawyer Who Stands With You
At Office of Advocate, we help you rise above silence and reclaim your power. Non-consensual acts in marriage—whether vaginal, oral, anal, or violent—are not marital rights; they are acts of violence. Even where BNS/BNSS laws leave gaps, your safety and dignity do not. We stand beside you with strategy, compassion, and unwavering commitment until your consent is recognized as law, not an exception. Call +91-9902799884 to speak confidentially today.