Authored By: RITI
DAV University
INTRODUCTION
Marital rape in India remains legally unrecognized, perpetuating the dangerous assumption of implied consent within marriage. Penalising it is vital to dismantle entrenched patriarchal structures, uphold constitution guarantees of equality and dignity, and ensure justice for women. Judicial precedents such as Independent thought v union of India demonstrates a willingness to challenge outdated norms and highlight the urgent need for reform. [1]
Despite the comprehensive framework of Bhartiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the code of criminal procedure (Crpc), conjugal rape remains exempted from criminal liability. Under section 63 of BNS and section 376 of Indian Penal Code (IPC) specifically crave out exceptions that shield husbands from prosecution for rape within marriage. This legal exception arises from the historical assumption that marriage guarantees ongoing consent, reflecting cultural norms that privilege conjugal rights at the expense of individual freedom.
The question arises if a husband murders his wife, the rightly recognizes it as murder. Yet, if the same husband forces himself upon her without her consent, the law does not recognize it as rape. This contradiction highlights one of the most glaring gaps in India’s criminal justice system.
The discussion begins with an examination of statutory provisions in the BNS, BNSS, and IPC that sustain the marital rape exemption. It then turns to the societal attitudes that normalize this practice and considers the reasons for their persistence. Finally, the paper evaluates the constitutional principles and judicial precedents that underscore the need for criminalization, outlining a path towards meaningful reforms.
LEGAL FRAME WORK IN INDIA
Section 63 of the BNS (formerly section 375 IPC) defines rapes but retains exception 2, which exempts husbands from the prosecution for non- consensual intercourse with their spouse, provided that the wife is above the age of eighteen years.[2] Section 64 of the BNS (formerly section 376 IPC) prescribes punishment for rape but does not extend protection to wives above the age threshold.
Other statutes indirectly address sexual abuse in marriage. The protection of women from domestic violence act 2005 recognizes sexual abuse as domestic violence, but it provides only civil remedies such as protection orders, not criminal punishment for rape[3]. Similarly, section 498IPC/BNS penalizes cruelty by husbands but does not encompass marital rape.
From a constitutional perspective, the marital rape exception undermines fundamental rights. Article 14 guarantees equality before law, yet married women are denied equal protection against sexual violence. Article 15 prohibits discrimination, but the exception discriminates in the basis of marital status. Article 21 protects life and personal liberty, including dignity and privacy, yet the exception strips married women of bodily autonomy.[4]
The justice Verma committee (2013) recommended criminalization of marital rape, but parliament rejected the proposal citing fears of misuse.[5]
INTERNATIONAL LEGAL FRAMEWORK
CEDAW (1979):
Obligates states to eliminate discrimination against women in all spehers, including marriage. India ratifed CEDAW but enterd reservations, limiting its domestic impact.[6]
ICCPR (1966):
Article 7 prohibits cruel, inhuman, or degrading treatment. Marital rape immunity conflicts with this obligation.[7]
UN Declaration on the Elimination of Violence Against Women (1993):
Explicitly recognized marital rape as a form of violence against women.[8]
CASE LAW ANALYSIS
Judicial pronouncements have gradually chipped away at the marital rape exception, though full recognition remains elsusive.
Independent thought v union of India (2017): the supreme court read down expection 2 to section 375 IPC, holding that sexual intercourse with a wife aged 15 to 18 amounts to rape. [9]
RIT Foundation v union of India (Delhi HC, 2022): Produced a split verdict. Justice Shakdher declared that marital rape exception is unconstitutional, emphasizing that consent is central to sexual autonomy. Justice Hari Shankar upheld the exception, citing legislative intent and concerns about misuse. The matter now awaits resolution before the supreme court.[10]
Joseph Shine v union of India (2018): Though focused on adultery, the supreme court struck down section 497 IPC, affirming that married women are not property of the husbands.[11]
State of Karnataka v Krishnappa (2000): The Court recognized a woman’s bodily integrity and trauma caused by non‑consensual intercourse, even within marriage.[12]
CRITICAL EVALUATION
The persistence of the marital rape exception reflects colonial legacy and patriarchal ideology. The doctrine originates from Sir Matthew Hale’s 17th‑century assertion that marriage implies irrevocable consent.[13]
The Justice Verma Committee Report (2013), constituted after the Nirbhaya case, explicitly recommended criminalization of marital rape, noting that it violates women’s equality and dignity. Parliament rejected the proposal, citing fears of misuse and disruption of marriage.[14]
Constitutionally, the exception is indefensible. The “golden triangle” of Articles 14, 19, and 21, as interpreted in Maneka Gandhi v Union of India (1978), requires laws to uphold equality, liberty, and dignity. Post‑Puttaswamy v Union of India (2017), privacy and bodily autonomy are recognized as fundamental rights. Retaining the exception contradicts these principles.
Social concerns about false complaints are often exaggerated. Empirical evidence form jurisdiction that criminalized marital rape shows no significant misuse. Instead, criminalization empowers women to seek justice and deters abuse. The argument that criminalization would destabilize marriage ignores the fact that marriage cannot justify violence.
COMPARATIVE PERSPECTIVES
Examining global practices highlights India’s isolation in retaining marital rape immunity.
United Kingdom: In R v R (1991), the House of Lords abolished marital rape immunity, affirming that marriage does not imply perpetual consent.
United States: All 50 states criminalize marital rape, though enforcement varies. Federal law recognizes it as sexual violence.
South Africa: The Criminal Law (Sexual Offences and Related Matters) Amendment Act explicitly criminalizes marital rape.
Nepal: Criminalized marital rape in 2002, though enforcement remains weak.
Bangladesh: Retains marital rape immunity, reflecting similar colonial legacies as India.
Internationally, treaties such as CEDAW and ICCPR obligate states to protect women’s bodily autonomy and dignity. India’s retention of the marital rape exception conflicts with these commitments.
CONCLUSION
The persistence of the marital rape exception in India reflects a troubling contradiction between constitutional guarantees and legislative inertia. While the law recognizes murder within marriage as a crime, it continues to deny rape within marriage the same recognition, thereby undermining women’s dignity, autonomy, and equality. Judicial interventions, such as Independent Thought v Union of India and the split verdict in RIT Foundation v Union of India, demonstrate a growing willingness to challenge outdated norms, yet meaningful reform remains stalled at the legislative level. Comparative perspectives from jurisdictions like the United Kingdom, United States, and South Africa reveal that criminalization of marital rape is both possible and necessary, aligning legal systems with global human rights standards. For India to uphold its constitutional values and international commitments, it must confront entrenched patriarchal assumptions and criminalize marital rape, ensuring that marriage is not a shield for violence but a partnership grounded in consent and respect.
REFERENCE(S):
Bharatiya Nyaya Sanhita 2023, s 63.
Protection of Women from Domestic Violence Act 2005, s 3.
Constitution of India, arts 14, 15, 21.
Independent Thought v Union of India (2017) 10 SCC 800.
RIT Foundation v Union of India, Delhi HC, W.P.(C) 284/2015, Judgment dated 11 May 2022.
Joseph Shine v Union of India (2019) 2 SCC 189.
State of Karnataka v Krishnappa (2000) 4 SCC 75.
Matthew Hale, The History of the Pleas of the Crown (1736).
Justice Verma Committee, Report on Amendments to Criminal Law (Government of India 2013).
R v R [1991] UKHL 12.
BIBLIOGRAPHY
Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (Oxford University Press 1999).
Pratiksha Baxi, Public Secrets of Law: Rape Trials in India (Oxford University Press 2014).
Madhavi Choudhury, ‘Marital Rape and the Indian Legal System: A Critical Analysis’ (2018) 25(2) Indian Journal of Gender Studies.
Nivedita Menon, Seeing Like a Feminist (Zubaan 2012).
UN Committee on the Elimination of Discrimination Against Women, General Recommendation No 35 on Gender-Based Violence Against Women (2017).
ARTICLE BY- RITI
B.A.LL. B-4TH YEAR
DAV UNIVERSITY
[1] Indian kanoon
[2] Bharatiya Nyaya Sanhita 2023, s 63.
[3] Protection of women from domestic violence Act 2005, s 3.
[4] Constitution of India, article 14,15,21.
[5] Justice Verma committee, report on amendments to criminal law (Government of India 2013)
[6] UN General Assembly, convention on the elimination of all forms of disclinations against women (CEDAW,1979)
[7] UN Human Rights Committee, International Covenant on Civil and Political Rights (ICCPR, 1966).
[8] UN General Assembly, Declaration on the Elimination of Violence Against Women (1993).
[9] Independent Thought v Union of India (2017) 10 SCC 800.
[10] RIT Foundation v Union of India, Delhi HC, W.P.(C) 284/2015, Judgment dated 11 May 2022
[11] Joseph Shine v Union of India (2019) 2 SCC 189.
[12] State of Karnataka v Krishnappa (2000) 4 SCC 75.
