Bharatiya Nyaya Sanhita, 2023
Section 67
Sexual intercourse by husband upon his wife during separation
Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine. Explanation.—In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 63.
Why this exists
This provision was originally introduced into Indian law (as IPC Section 376B) in 2013, following recommendations of the Justice J.S. Verma Committee set up after the 2012 Delhi gang-rape case. It responded to the reality that separated wives — who are not living with or dependent on their husbands — deserve protection from non-consensual sex, even though Indian law traditionally exempted husbands from rape charges during an ongoing, cohabiting marriage. The BNS, 2023 carried this provision forward largely unchanged, continuing to treat marital sexual assault during separation as a lesser offence than rape by a stranger, rather than as full rape.
How courts read it
Courts have not extensively interpreted this specific separation-based provision in isolation, but it sits within a larger, actively contested area of law: the broader marital rape exception (which protects husbands from rape charges during subsisting, cohabiting marriage) has been challenged as unconstitutional. In 2022, the Delhi High Court gave a split verdict in RIT Foundation v. Union of India, with one judge striking down the exception and the other upholding it; the matter is pending before the Supreme Court. Earlier, in Independent Thought v. Union of India (2017), the Supreme Court read down a related exception to raise the age of consent for wives from 15 to 18, though it left the general marital rape exception for adult wives untouched. This section on separated wives remains a narrower, less controversial carve-out compared to the ongoing debate over cohabiting marriages.
Common misconceptions
- Myth: This section means marital rape is now fully illegal in India under all circumstances.
Fact: This section only covers cases where the wife is living separately from her husband. If the couple is still living together, a separate long-standing exception in Indian rape law generally shields husbands from rape charges — a rule currently being challenged in the Supreme Court. - Myth: The wife needs a formal court decree of separation for this section to apply.
Fact: The section explicitly covers separation 'under a decree... or otherwise,' meaning even an informal, undocumented separation counts.