Authored By: Nikita Shree
Symbiosis Law School Hyderabad
Introduction
Indian marriage has always been viewed not as a contractual relationship but as a sacred and long-lasting institution with cultural, religious, and societal rules. In this context, the concept of conjugal rights has tended to undermine personal freedom of spouses, especially women. Among the most controversial expressions of such an imbalance, one can single out the marital rape exception, which still refuses to acknowledge the criminal nature of non-consensual sexual intercourse within a marriage.
Although constitutional jurisprudence has made great progress on the basis of dignity, equality, and personal liberty, the Indian criminal law has kept this exception. The Indian Penal Code, 1860, was the name of the earlier code of law put in place and with the introduction of a new code called the Bharatiya Nyaya Sanhita, 2023 (BNS), it was hoped that the new law would be progressive. The legislature, however, opted to keep the marital rape exception in its content, and thus to keep out of the protection of rape both forcible sex relations in the marriage that were forced and not consensual.
This detention is fraught with constitutional and moral issues. It establishes a dichotomy, according to which the law acknowledges consent as the core of sexual autonomy in general but ignores it in the context of marriage. The paper critically analyses the constitutionality of the marital rape exception in the BNS, reviews judicial case law, considers socio-cultural considerations, and reflects on comparative legal viewpoints to argue that the exception should be abolished.
Historical background and evolution
The marital rape exception dates to the English common law, specifically the doctrine of Sir Matthew Hale in the 18th century, that said that a husband could not be convicted of raping his wife since she had made an irrevocable consent by getting married to her husband. The doctrine was based on the principle of coverture according to which the legal personality of a woman was absorbed by that of her husband.
This archaic doctrine was enshrined in the Indian Penal Code, 1860, into the Indian colonial law and remained in place after independence. Despite profound constitutional change in India since then, much of the law in the colonial era continues to be made on the old assumptions.
Feminist movement and human rights discourse have continuously criticised this exception claiming that is an expression of patriarchal domination over the bodies of women. With time, various nations have repealed such exceptions because they have realised that marriage does not take away personal autonomy.
Despite these international changes, India has the legacy of historical and cultural norms on legal change.
Legal framework under the Bhartiya Nayaya Sanhita, 2023
The Bharat Nayaya Sanhita of 2023 rearranges the criminal law provisions, but it does not fundamentally change the legal stand on marital rape. The law still defines rape majorly based on lack of consent. It, however, still has an exception that does not apply to sexual intercourse by a man with his wife if she is above the legally stipulated age.
This results in a legal paradox:
- Rape is about consent.
- However, in marriage, there is a presumption that consent is of no importance.
The BNS thereby allows the assumption that marriage is one of incessant and irreversible consent to continue. This supposition does not fit contemporary constitutional principles and international human rights practices.
- Violation of article 14: Equality before law
Article 14 declares equality before the law and equal protection of the laws. The marital rape exception introduces a distinction of married and unmarried women.
Rape laws protect the unmarried women fully.
Women married do not get this protection.
This classification does not pass the reasonable classification test that entails:
- An intelligible differentia
- A logical nexus towards the purpose of the law.
Rape laws have a goal of safeguarding people against unwilled sexual activities. This exclusion of married women is a blow to this goal, and such categorisation is arbitrary and unconstitutional.
- Violation of Article 21: Right to life, dignity & bodily autonomy
Article 21 has been broadly viewed to cover the right to live with dignity, bodily wholeness and decisional sovereignty.
In the case of Justice K.S. Puttaswamy v. Union of India the Supreme Court acknowledged privacy as one of the fundamental rights that include the autonomy of the body. Also, the Court in Suchita Srivastava v. Chandigarh Administration upheld reproductive autonomy as a part of personal liberty.
The marital rape exception breaches these principles since it:
- Refusing women their control over bodies.
- Forcible rape.
- Weakening dignity and autonomy.
It practically downgrades a married woman into a passive object in marriage, which is against constitutional provisions.
- Violation of article 19: Freedom and Personal CI
Article 19 safeguards various kinds of freedom among them being the freedom of expression and personal choice. Forced sex violates the right of a woman to make personal decisions about her body and relationships hence interfering with her autonomy.
Legal Practice and Modern Trends.
The Indian judiciary has been significant in making fundamental rights broader, but it has failed to decisively declare the marital rape exception.
Independent
In one case the Supreme Court interpreted the exception as criminalising sexual intercourse in case of wife who was below 18 years of age. This ruling recognised the significance of consent but fell short of the issue of marital rape amongst adult women.
In case of RIT Foundation v. Union of India (2022), the Delhi High Court issued a divided judgment:
- Justice Rajiv Shakdher declared the exception as unconstitutional.
- It was supported by the justice C. Hari Shankar and with the stress given to legislative competence.
- This division shows the larger conflict of constitutional values and social values.
The case is in the Supreme Court, and its final ruling will have a far-reaching impact on gender justice in India.
Comparative legal analysis
A worldwide trend has been that of appreciating marital rape as an even the ones that it is bound by such as the CEDAW.
Socio-Cultural Justifications: A Critical Analysis.
- Retention of Institution of Marriage.
The argument is that, legalising marital rape would unstable marriages and would result in more litigation.
Critique:
Preservation of marriage should not be done at the expense of basic rights. A legal system that condones violence in marriage defeats itself.
- Fear of Misuse
People who are against say that making marital rape a crime may result in false allegations.
Critique:
All criminal laws have the risk of being abused. Nonetheless, it is no excuse to withhold protection to actual victims. Procedural guarantees can deal with the abuse without laying off the crime.
- Implied Consent Doctrine
The fact that marriage presupposes consent is one of the main rationales.
Critique:
Irrevocable consent is not acceptable in the modern legal systems. The consent should be informed, voluntary and continuous. The right to refuse is not put out by marriage.
- Evidentiary Difficulties
It is argued that marital rape would be hard to prove as there would be no evidence.
Critique:
All rape cases have evidentiary challenges, but they are considered as offences by the law. This can be solved by enhancing investigative mechanisms and not criminalisation denial.
Critical analysis
The fact that the Indian law still upholds the marital rape exception in the Bharatiya Nyaya Sanhita, 2023 is a core contradiction of Indian law. Although the Constitution provides the equality, dignity, and autonomy, they are not given in marriage by the criminal law.
This paradox shows a more extensive structural problem, which is the remaining of patriarchal standards in law. The law perpetuates gender inequality by subjecting married women to more treatment than giving them equal treatment and justifies violence.
Moreover, there is a lack of political will in the failure to resolve this problem in the criminal law reforms of 2023. The legislature preferred the status quo even though there were a lot of debates and recommendations by legal scholars and activists.
Constitutional morality, which the Supreme Court has put forth in several decision-making cases, dictates that laws should be in line with the basic rights and not the prejudices of the society. Marital rape exception fails this test.
Suggestion and legal form
- Legislative Amendment
The most vital change is the elimination of marital rape exception in the BNS so that all women can be equally protected.
- Explicit Recognition of Consent.
The legislation should specify that no sexual relationship should take place without consent even in marriage.
- Procedural Safeguards
Implement protection measures like first investigation and judicial checks and balances to combat misuse.
- Training and Sensitisation
The police, judicial systems and even the medical practitioners should be sensitised to approach such cases with care.
- Public Awareness
There should be awareness campaigns that will break societal norms that act to normalise marital rape.
- Judicial Intervention
Without legislative reform, the judiciary is supposed to make interpretations of the existent provisions according to the provisions of the constitution.
Conclusion
The marital rape exception is still one of the major loopholes in the Indian criminal law. Although the law has been changed to the Bharatiya Nyaya Sanhita, 2023, the law still does not offer protection to married women against sexual violence.
This exception is not in line with the constitutional assurances of equality, dignity, and personal liberty. It is a sign of antiquated ideas of marriage that cannot be reconciled with the contemporary legal standards.
As India progresses to a more rights-based legal system, it should realise that marriage does not put out autonomy. Making the act of marriage rape criminal is a necessary move to make the law reflect the primary truth that consent is the basis of all human relationships.
It is only through this issue that India can be able to live up to its promise of justice, equality, and human dignity.
