One of the most debatable issues in Indian criminal jurisprudence has been whether or not sexual intercourse without consent within a marriage is actionable. The Bharatiya Nyaya Sanhita 2023 (BNS) still includes the marital rape exception, despite many constitutional developments, which now acknowledge the dignity, privacy, bodily integrity and decisional autonomy. Thus, the debate has primarily centred on two options: Parliament as a lawmaker and the higher judiciary as a constitutional invalidator.
This binary approach, however, ignores an important interpretative potential already contained in the statutory framework.
Section 67 of the Bharatiya Nyaya Sanhita, 2023, which is equivalent to the erstwhile Section 376B of the Indian Penal Code, establishes a separate offence of a husband committing sexual intercourse with his wife without her consent when she is living separately. The provision is for when the two spouses reside apart "whether under a decree of separation or otherwise.
Judicial activity so far has been largely concentrated on whether this is a separate offence, but very little attention has been given to the meaning of the word otherwise. This article suggests that Parliament had intended to use this language to expand the reach of the provision beyond official declarations of judicial separation. In the correct usage, the term "otherwise" can capture all of the legally recognized interference with marital consortium without straying from the plain meaning of the statute passed by Parliament. Such an argument does not impose a new offence and doesn't remove the martial rape exception. Instead, it brings to fruition the intent of the legislature in selecting the words which one gives meaning to in the concrete and promotes constitutional values of dignity, integrity and autonomy of the person.
The current legal situation:
The Bharatiya Nyaya Sanhita Section 67 is a special provision in the Indian criminal laws. It acknowledges that criminal liability does not necessarily cease once the marriage ends, if spouses are not still living together.
Section 67 provides:
If any person has sexual intercourse with his own wife, who is living separately, whether by a decree of separation or otherwise, without her consent he shall be punished by imprisonment...
This provision replicates substantially section 376B of Indian Penal Code, 1860, which was adopted by the Parliament in the past. It is noteworthy in that regard, because it illustrates that Indian criminal law has never recognised marriage as a perpetual or irrevocable consent to sexual intercourse. Rather, Parliament itself admitted that it could be a criminal act if there was no consent between husband and wife in some cases.
Section 67 is thus not just a provision to be applied in the immediate future. It demonstrates the legislatures' recognition that in all circumstances the institution of marriage is not a complete defence to the taking of non-consensual sexual intercourse. Why the Word "Otherwise" Matters
The central interpretative issue lies in the phrase:
“...living apart, by decree of separation or otherwise.”
The expression might seem at first sight to be descriptive. It does, however, have significant importance in the legal field.
A basic rule of statutory interpretation is that each word that Parliament has enacted should be interpreted on its own merits. Courts consistently eschew reading into a statute interpretation that render it "redundant" or "surplusage" or "otiose." Any expression that the legislature adopts is presumed to have been deliberately added, and must therefore have a clear purpose.
If Parliament had intended to limit the scope of Section 67 to judicial separation, it could have said: "under a decree of separation. On the other hand, had the legislature meant to apply the provision only to cases of physical separation, then it would not have introduced the judicial decrees.
The intentional use of the word "or otherwise" is not an accident, therefore.
The term necessarily widens the provision beyond judicial decrees of separation. The more compelling interpretation is that Parliament meant the expression to cover all circumstances which are legally recognized as a situation where spouses may legally reside apart.
These can be situations such as:
a) protection/residence orders under the Protection of Women from Domestic Violence Act, 2005;
b) judicial separation under the Hindu Marriage Act, 1955;
c) decrees under the Special Marriage Act, 1954;
d) customary separations recognised under applicable personal laws;
e) maintenance proceedings that acknowledge separate residence where supported by statute.
What is common to all of these situations, however, goes beyond geographical distance: it is a legal acknowledgment of the disruption of marital cohabitation. Thus use of the term "otherwise" serves as a legislative link between separate living as officially provided by law and formal judicial separation.
This is not an amendment of the offence beyond the terms of the statute. Instead it provides content to every word of Parliament that has been deliberately uttered, and it restricts the interpretation of statutes to one that does justice to all the words of the legislature.
Judicial Recognition of Section 67:
There have been limited cases heard on Section 67 (previously Section 376B IPC); but the cases that have been heard have confirmed that marriage is not an absolute defence to a prosecution for non-consensual sexual intercourse.
The Honorable Justice J.B. Pardiwala in Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLINE Guj 732 has held that Parliament had wittingly provided for a separate offence when the spouse is living separately under any decree of separation or otherwise. The Court did not specifically delve into the meaning of "otherwise," but did hold that continued marriage will not preclude criminal liability. This gives good background information for a wider understanding of Section 67.
The constitutional discussion became prominent in the case of RIT Foundation v. Union of India (2022), in which the Delhi High Court has given a split judgment on the validity of the marital rape exception. Both judgments, though they did not reach any definite conclusion, extensively explored consent, autonomy of the body, moral responsibilities, and the special status of Section 376B IPC. The case shows that Section 67 is a unique provision, and may not be considered a simple exception in the Indian criminal law system.
Constitutional Foundations:
All application of Section 67 shall be in accordance with the values of the constitution.
In Justice K.S. Puttaswamy (Retd.) v. Union of India (2017), the Supreme Court identified dignity, bodily integrity and decisional autonomy as being part of privacy. Similarly, in Suchita Srivastava v Chandigarh Administration (2009), the Court concluded that reproductive option is a part of personal freedom under Article 21.
These principles were further highlighted by the Supreme Court in Joseph Shine v Union of India (2019), which held that marriage does not abate the fundamental rights and autonomy of individuals. All these decisions come together and conclude that consent and respect for the body is still relevant even in marriage.
The rationale in Independent Thought v. Union of India (2017) is also noteworthy. Although the case was about child marriage, the Supreme Court read down the marital rape exception because marriage does not necessarily provide an absolute shield for non-consensual sexual intercourse with the exception of minor wives. The judgment is a small but important step in the direction the Court wants to take in reconciling the criminal law with the constitutional rights to dignity and bodily autonomy.
In the same vein, the Supreme Court in X v Principal Secretary, Health and Family Welfare Department (2023), had recognised that in some fact scenarios a husband can commit rape on his wife. While these observations do not contradict the marital rape exception, they confirm a woman's bodily integrity and autonomy of decision-making over her marriage.
Section 221 BNSS: An Important Safeguard:
One objection to broadening the scope of Section 67 is that it could be abused. But this concern is already taken care of by Bharatiya Nagarik Suraksha Sanhita, 2023. No court shall take cognizance of an offence under Section 67 except upon allegation, in accordance with Section 221 BNSS. The complaint must be made by the wife and the Magistrate must be convinced of the existence of a prima facie case before criminal action can be taken.
This mandate provides for judicial review at the outset. Recognising a wider application of the term 'otherwise' would not automatically lead to blanket prosecutions; therefore, it would still need to be given careful consideration in court.
Why This Interpretation Matters:
The proposed interpretation does not suggest that the courts should invent a new offence or invalidate the marital rape exception. Rather, it directs courts to a well-established doctrine of statutory interpretation, which is that every word passed by Parliament must be given some meaning.
The meaning of the word otherwise does not change the words of the statute, nor expand the liability of the criminal beyond what is clearly stated. Instead, it brings to life Parliament's words, and ensures consistency with the constitutional principles of dignity, equality and bodily autonomy.
Section 67 of Bharatiya Nyaya Sanhita is so much more than just Section 376B IPC. It's an example of Parliament recognising that marriage does not preclude the need for consent. Therefore, the words "whether under a decree of separation or otherwise" should be read preferentially to cover all legally recognised means of separation.
An interpretation that respects the intent of the legislature, assigns meaning to each of the words in the statute, and furthers constitutional values does not necessitate the invention of a new crime. Section 67 is a lawfully defensible and constitutionally sustainable means for maintaining a greater respect for sexual autonomy in marriage, in complement to the procedural safeguards included in Section 221 BNSS.
References:
- Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023).
- Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023). India Code.
- Committee on Amendments to Criminal Law, Justice J.S. Verma Committee Report (2013).
- Constitution of India, arts. 14, 19 & 21.
- Delhi High Court Marital Rape Challenge – Constitutional Analysis, LiveLaw. https://www.livelaw.in/columns/delhi-high-court-section-375-of-ipc-constitution-marital-rape-189475
- Hindu Marriage Act, 1955. India Code
- Law Commission of India, 172nd Report on Review of Rape Laws (2000). Official PDF: https://lawcommissionofindia.nic.in/category-wise-reports/
- Protection of Women from Domestic Violence Act, 2005.India Code
- Sneha Kadyan & N. Prabha Unnithan, The Continuing Non-Criminalization of Marital Rape in India: A Critical Analysis, Women & Criminal Justice (2023). DOI:
- Special Marriage Act, 1954. India Code
- Unconstitutionality Of Marital Rape Exception In Indian Penal Code, LiveLaw. https://www.livelaw.in/amp/columns/unconstitutionality-marital-rape-exception-indian-penal-code-179324
Author Dr. Soumya Khanna is an Assistant Professor at Vivekananda School of Law and Legal Studies (VSLLS), VIPS-TC, New Delhi & Sushant Dabral is an Assistant Professor of Law at Galgotias University. Views are personal.