Exception 2 to Section 63 BNS (Marital Rape Exception): Moot Memorials for Both Sides and a Seminar Paper

The Indian Penal Code's Exception 2 to Section 375 said that sexual intercourse by a man with his own wife, not below a stated age, is not rape. In Independent Thought v. Union of India (2017) the Supreme Court read the age up to eighteen. When Parliament replaced the IPC with the Bharatiya Nyaya Sanhita, 2023 (BNS), in force from 1 July 2024, Exception 2 to Section 63 retained the exception for wives aged eighteen and above. Challenges to both provisions, including appeals from the Delhi High Court's 2022 split verdict in RIT Foundation v. Union of India and the Karnataka High Court's 2022 decision in Hrishikesh Sahoo v. State of Karnataka, are pending before the Supreme Court, which in September 2026 listed the batch for final hearing.

This bundle is a complete moot-court exercise built on a fictional Article 32 writ petition before the Supreme Court of India challenging Exception 2 to Section 63 BNS. It contains a moot proposition, a petitioner's memorial and a respondent's memorial with four issues each, an oral-rounds plan, and a neutral seminar paper that sets out the constitutional arguments for striking down, reading down and retaining the exception, with a short comparative note.

The pack is written for the BCI clinical course "Moot Court Exercise & Internship", where the moot component carries 30 marks, and for a criminal-law seminar paper. It presents both sides as they would appear in a real moot record and takes no position.

Abstract

This moot and seminar pack examines the constitutional validity of Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023, which excludes non-consensual sexual intercourse by a husband with his adult wife from the offence of rape. Through petitioner and respondent memorials in a fictional Article 32 petition and an accompanying seminar paper, it analyses arguments under Articles 14, 19(1)(a) and 21, the limits of judicial review of criminal statutes in light of Article 20(1) and the separation of powers, and the availability of other civil and criminal remedies. A short comparative section considers how courts and legislatures elsewhere have addressed the question.

Introduction

The exception dates from the 1860 Code and reflected the then-prevailing view of marriage as irrevocable consent. Since then Indian constitutional law has developed doctrines of bodily autonomy, decisional privacy and substantive equality in cases such as Suchita Srivastava (2009), K.S. Puttaswamy (2017), Joseph Shine (2018) and X v. Principal Secretary, Health and Family Welfare Department (2022). At the same time, Parliament re-enacted the exception in 2023 after considering criminal-law reform, and the Union government has told the Supreme Court that the question belongs to the legislature and that other remedies exist.

The legal question and the gap

High Court judgments disagree, and the Supreme Court has not yet decided the matter. Student seminar papers often argue only one side or cite the IPC without updating to BNS. This pack gives an updated, two-sided record that a student can use to prepare for either side and to write a balanced seminar paper.

Method

Doctrinal legal research: statutes, Constitution, case law, Law Commission and committee reports, parliamentary material and scholarly commentary, with limited comparative study.

Feasibility

All materials are available through SCC Online or Manupatra (provided by most law colleges), India Code and the Supreme Court website. The exercise fits a final-year semester alongside court visits for the trial-observation component.

Exception 2 to Section 63 BNS excludes non-consensual intercourse by a husband with his wife aged eighteen or above from the definition of rape. Petitioners argue that the exception denies married women equal protection, bodily autonomy and dignity, and that marriage cannot be an intelligible basis for withdrawing the protection of rape law. The Union and those supporting the exception argue that the matter concerns legislative policy on marriage and criminal law, that Parliament re-enacted the exception deliberately in 2023, that courts cannot create or expand a criminal offence, and that married women have other civil and criminal remedies. The moot and the seminar paper ask: is Exception 2 to Section 63 BNS consistent with Articles 14, 19(1)(a) and 21 of the Constitution, and if not, what relief can a constitutional court grant consistent with Article 20(1) and the separation of powers?

The pack covers Exception 2 to Section 63 BNS and its IPC predecessor, related BNS provisions such as Section 67 (intercourse by a husband during judicial separation), relevant constitutional doctrine and the pending Supreme Court litigation as reported up to September 2026. It is an educational exercise on a fictional petition; it is not legal advice, does not predict the outcome of real litigation and must not identify any survivor.

Research design

Doctrinal legal research with a limited comparative element, organised as a moot record: the same research base supports two opposing memorials and one neutral paper.

Sources

• Primary: Constitution of India; BNS 2023 (Sections 63, 67, and 85–86 on cruelty); IPC 1860 Section 375 Exception 2 (as it stood); Protection of Women from Domestic Violence Act, 2005; Hindu Marriage Act, 1955 (restitution of conjugal rights).
• Judgments: Independent Thought v. Union of India (2017) 10 SCC 800; RIT Foundation v. Union of India (Delhi HC, 2022, split verdict); Hrishikesh Sahoo v. State of Karnataka (Karnataka HC, 2022); Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1; Joseph Shine v. Union of India (2019) 3 SCC 39; Navtej Singh Johar v. Union of India (2018) 10 SCC 1; Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1; X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi (2022); cases on presumption of constitutionality and on courts not creating offences.
• Reports: Law Commission of India, 172nd Report (2000); Report of the Committee on Amendments to Criminal Law (Justice J.S. Verma Committee, 2013).
• Comparative: R v R [1991] UKHL 12; Forum for Women, Law and Development (Meera Dhungana) v. His Majesty's Government (Supreme Court of Nepal, 2002).

Moot proposition (summary)

A fictional women's-rights trust and an anonymised petitioner "X" file a writ petition under Article 32 challenging Exception 2 to Section 63 BNS after a magistrate declines to take cognisance of a rape complaint against X's husband. The Union of India is the respondent.

Issues (common to both memorials)

1. Whether the writ petition under Article 32 is maintainable.
2. Whether Exception 2 to Section 63 BNS violates Article 14.
3. Whether it violates Articles 19(1)(a) and 21.
4. Whether the Court can strike down or read down the exception consistently with Article 20(1) and the separation of powers, and what relief follows.

Work plan (10 weeks)