Open Access Research Article
THE MARITAL RAPE EXCEPTION AS A THRESHOLD BARRIER: VICTIM COMPENSATION AND RESTORATIVE JUSTICE IN INDIA
Abstract
Abstract
India has,
over three decades, developed a layered architecture of victim compensation and
restorative-style relief for sexual offences: a statutory victim-compensation
scheme under Section 396 of the
Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023; a pan-India model scheme framed by the National Legal
Services Authority (NALSA) pursuant to Nipun Saxena v Union of India; and
judicial recognition of interim relief independent of conviction. None of this
architecture is, in practice, available to an adult wife subjected to
non-consensual sexual intercourse by her husband, because Exception 2 to
Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 provides that such
conduct does not constitute rape. Restorative justice and victim compensation
presuppose that the conduct in question has first been legally recognised as a
wrong; the marital exception operates at that prior, recognitional stage,
foreclosing the ordinary criminal-compensatory
response before it can be triggered. This article examines that foreclosure
at a moment of particular significance, with the constitutional validity of the
exception presently before a three-judge Bench of the Supreme Court. It traces
the statutory and judicial architecture of victim compensation for sexual
offences in India, explains why the marital exception functions as a threshold rather than an implementation barrier,
and analyses the substituted relief available under the Protection of Women
from Domestic Violence Act, 2005, arguing that it is structurally different
and, in key respects, lesser. Drawing on the House of Lords’ 1991 abolition of
the equivalent English common law immunity and the design of the United
Kingdom’s criminal injuries compensation tariff, the article argues that
criminalisation, if it occurs, need
not require an entirely new compensatory scheme, and proposes interim reforms to narrow the gap in the meantime.
Published Paper
Author Details
Authors: UTKARSH MISHRA
Registration ID: 1013225 | Published Paper ID: IJLRA13225
Year: Sep-2026 | Volume: 3 | Issue: 6
Approved ISSN: 2582-6433 | Country: Delhi, India
Page No.: 1597-1608
Article Information
THE MARITAL RAPE EXCEPTION AS A THRESHOLD BARRIER: VICTIM COMPENSATION AND RESTORATIVE JUSTICE IN INDIA
Authors: UTKARSH MISHRA
- Journal IJLRA
- ISSN 2582-6433
- Volume 3
- Issue 6
About Journal
International Journal for Legal Research and Analysis
- AbbreviationIJLRA
- ISSN2582-6433
- AccessOpen Access
- LicenseCC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.