Bharatiya Nagarik Suraksha Sanhita, 2023
Section 221
Cognizance of offence
No Court shall take cognizance of an offence punishable under section 67 of the Bharatiya Nyaya Sanhita, 2023 where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband.
Why this exists
Section 67 of the Bharatiya Nyaya Sanhita, 2023 criminalises certain non-consensual sexual acts by a husband against his wife, largely in situations of judicial or actual separation — it does not create a general offence of 'marital rape' within an ongoing marriage. Because such cases touch deeply personal and sensitive family matters, lawmakers added this procedural filter (similar in spirit to older restrictions on cognizance for matrimonial offences) so that police or third parties cannot casually or maliciously trigger prosecutions. Instead, only the wife, as the person directly affected, can set the process in motion, and a court must first see that there is a genuine, credible basis for the complaint before proceeding.
Common misconceptions
- Myth: This provision means marital rape is fully criminalised in India.
Fact: Section 67 of the Bharatiya Nyaya Sanhita only covers specific situations, mainly involving separation; it does not criminalise all non-consensual sex within an ongoing marriage. Section 221 only adds a procedural filter to that narrower offence. - Myth: Police can register and investigate this offence on their own once they hear about it.
Fact: Under Section 221, only a complaint filed by the wife against the husband can lead a court to take cognizance, and even then the court must first find a prima facie case.