Authored By: Phumelele Mandisa Masondo
Parul University
ABSTRACT
SOUTH AFRICA
-FORMALLY CRIMINALIZED MARITAL RAPE IN 1993 (PREVENTION OF FAMILY VIOLATION ACT).
INDIA
-SECTION 63 OF BHARATIYA NYAYA SANHITA
-AN EXCEPTION EXISTS: SEXUAL INTERCOURCE BY A MAN WITH HIS OWN WIFE (PROVIDED SHE IS NOT A MINOR) IS NOT RAPE.
INTRODUCTION
BOTH COUNTRIES HAVE A COMMON TERM FOR GBV (GENDER BASED VIOLENCE “SHADOW PANDEMIC”.DESPITE BEING SUPPOSED TO BE THE SAFEST PLACE,THE HOUSE IS OFTEN THE LOCATION OF THE MOST SERIOUS INJURIES.
INDIA AND SOUTH AFRICA ARE BOTH CONSTITUTIONAL DEMOCRACIES.ACCORDINGLY THE CONSTITUTION SERVES AS NATIONS “SUPREME LAW”. THE CONSTITUTION’S PROVISIONS MUST BE ADHERED TO BY EVERY LAW MADE BY PARLIAMENT AND EVERY GOVERNMNET ACTION.A STATUTE MAY BE DECLARED “UNCONSTITUTIONAL” AND OVERTURNED BY THE COURTS IF IT CONTRADICTS THE CONSTITUTION.
THERE ARE THREE COMMON REASONS WHICH UJNDERLINE THE OPPOSITION TO MAKING MARITAL RAPE A CRIME OR BRINGING LEGAL ACTION AGAINST IT IN BOTH COUNTRIES WHICH ARE AS FOLLOWS:
- THE IDEA OF CONSENT
-IN BOTH SOCIETIES,IT IS A COMMON CULTUREAL MYTH THAT A WOMAN HAS GRANTED “PERMANENT IMPLIED CONSENT” FOR THE REST OF HER LIFE BY SAYING “I DO” DURING A WEDDING.
- ECONOMIC DEPENDENCY
-IN NOTH COUNTRIES, A LARGE NUMBER WOMAN DEPEND ON THEIR SPOUSES TO MAKE ENDS MEET.LOSING FINACIAL ASSISTANCE AND A HOME IS FREQUENTLY THE RESULT OF NOT REPORTING A SPOUSE.
- PATRIARCHAL “SANCTITY’
-LEGISLATORS FREQUENTLY APPREHEND THAT “INTERVENING” IN INTIMATE RELATIONSHIPS WILL UNDERMINE THE FAMILY STRUCTURE,PRIORITIZING THE PRESERVATION OF MARRIAGE OVER THE SAFETY OF HERSELF.
COMPARISION OF THE LEGAL LANDSCAPE
SOUTH AFRICA
– THE 1993 ADOPTION OF THE SOUTH AFRICAN CONSTITUTION,WHICH REPLACED LAWS FROM THE APARTHEID ERA,HAS BEEN RECOGNISED AS ONE OF THE MOST PROGESSIVE IN THE WORLD AND SERVES AS A SAFEGUARD FOR EQUALITY,DIGNITY,AND HUMAN RIGHTS.WITH ITS JUSTICABLE BILL OF RIGHTS,WHICH FORBITS DESCRIMINATION AND REQUIRES THE STATE TO TAKE ACTION FOR SOCIOECONOMIC RIGHTS,IT FUNCTIONS AS THE ULTIMATE LAW.
SECTION 12(1)(CHAPTER 2, SECTION 12)
-FREEDOM AND SECURITY OF A PERSON
-IT STATES THAT EVERYONE HAS THE RIGHT TO THE FREEDOM AND
SECURITY OF THE PERSON WHICH INCLUDES THE RIGHT “TO BE FREE FROM ALL FORMS OF VIOLENCE FROM EITHER PUBLIC OR PRIVATE SOURCES.
– THIS LED THE GOVERNMENT’S LEGAL OBLIGATION TO MAKE MARITAL RAPE A CRIME BECAUSE THE CONSTITUTION ALSO PROTECTS BODILY LIBERTY.TO HAVE KEPT IT LAWFUL WOULD HAVE BEEN IN DIRECT OPPOSITION TO THE “RIGHT TO FRREDOM AND SECUTIRTY OF A PERSON”.
KEY TAKEAWAYS OF THE HIGH RATE OF GBV
-SOUTH AFRICA HAD A FEMALE HOMICIDE RATE OF 24.6 PER 100.000 PEOPLE, WHICH IS OVER SIX TIMES HIGHER THAN THE GLOBAL AVERAGE.
-THE RATE OF RAPE IN SOUTH AFRICA HAS DECREASED BY JUST 6% SINCE 1996,DESPITE LAWS BEING PASSED AND GENERAL GOVERNMNET INITIATIVES.ABOVE 28% OF MEN REPORTED HAVING RAPED ATLEAST ONE WOMAN, 46% REPORTED COMMITING THE SAME CRIME NORE THAN ONCE AND 7.7 REPORTED RAPING 10OR MORE WOMAN OR GIRLS.
CASE LAW
ZONDI vS
-THIS CASE IS ABOUT DOMESTIC VIOLENCE BETWEEN A COUPLE WHO WERE ABOUT TO GET MARRIED.
-THE MALE SPOUSE USED TO BEAT HIS FIANCE. THIS WAS A REPEATED OFFENCE.
RULING-MR ZONDI WAS SENTENCED TO 10 YEARS IMPRISONMENT.
FOR THE COURT TO COME TO THEIR RULING, THEY RELIED ON THE CASE OF Sv MALGAS AND A FEW OTHER CASES.
INDIA
-THE LEGAL DEFINITION OF RAPE,IN PARTICULAR THE MARITAL RAPE
EXCEPTION GRANTED UNDER EXCEPTION 2 TO SECTION 375 OF THE INDIAN PENAL CODE (IPC)(NOW MAINTAINED IN SECTION 63 OF THE BHARATIYA NYAYA SANHITA,2023),IS AT THE HEART OF THE ONGOING LEGAL AND SOCIAL STUGGLE SURROUNDING SEXUAL ASSULT IN INDIA. THIS PROVISION BASICALLY GIVES HUSBANDS LEGAL IMMUNITY FOR HAVING NON-CONSENSUAL SEX WITHIN THE
MARRAIGE BY STATING THAT SEXUAL CONTACT OR ACTS BETWEEN A MAN AND HIS OWN WIFE DO NOT QUALIFY AS RAPE, SO LONG AS THE WOMAN IS NOT YOUNGER THAN 15 (OR18 IN OTHER INTERPRETATIONS).
SECTION 63 BNS
– AN EXCEPTION EXISTS-SEXUAL INTERCOURCE BY A MAN WITH HIS WIFE (PROVIDED SHE IS NOT A MINOR) IS NOT RAPE.
THE APPLICATIONS WERE SENT TO THE SUPREME COURT AFTER THE DELHI HIGH COURT ISSUED A SPLIT DECISION IN 2022 AND OTHER HIGH COURTS ISSUED CONTRADITORY DECISIONS.THIS CASE WAS REFERRED TO A NEW BENCH,ANND PROCEEDINGS CONTINUED INTO 2025 AND 2026 AFTER A THREE-JUDGE PANEL STARTED IN OCTOBER 2024.
ATTEMPS TO REMOVE THE EXCLUSION HAVE BEEN ATTEMPTED IN PARLIAMENT NOTWITHSTANDING THE LEGAL DISPPUTE;ONE SUCH ATTEMPT WAS A BILL FILED BY SHASHI THAROOR IN DECEMBER 2025.THE SUPREME COURT IS NEGOTIATING THE “SENSITIVE SOCIAL ISSUES” BROUGHT UP BY THE GOVERNMENT,BUT IT HAS STATED THE SEXUAL CHOICES AND CONSENT ARE FUNDAMENTAL COMPONENTS OF AUTONOMY.
THE SUPREME COURT STATED IN A FEBRUARY 2026 DECISION THAT FAILED RELATIIONSHIPS SHOULDN’T BE TREATED AS CRIMINAL OFFENSES,BUT THIS WAS A RELATION TO A “MARRIAGE PROMISE THAT WAS NOT KEPT,” CASE;THE MARITAL RAPE EXCEPTION IS STILL A SEPARATE LEGAL ISSUE,IT IS ANTICIPATED THAT THE SUPREME COURT IS YET TO MAKE A FINAL VERDICT ABOUT THIS ONGOING ISSUE.
CONCLUSION
-THE INTERNATION HUMAN RIGHTS NORMS THAT SOUTH AFRICA HAS ALREADY EMBRACED ARE SERVING AS AN INSPIRATION FOR INDIA TO PUSH TO MAKE MARITAL RAPE A CRIME.SOUTH AFRICA’S EXPERIENCE,HOWEVER,DEMONSTATES THAT ALTERING THE LAW IS ONLY THE FIRST STEP;THE MORE
DIFFUCLT AND CONTINUAOUS FIGHT IS ALTERING THE WAYS IN WHICH POLICE, JUDGES,AND COMMUNITY THINK.REGARDLESS OF MARITAL STATUS,RAPE IS
ILLEGAL IN SOUTH AFRICA,ACCORDING TO THE CONSTITUTION.CURRENTLY, INDIA IS USING THE CONSTITUTION AS A WEAPON TO CHALLENGE THE CURRENT LEGILATION.THE ARGUMENT IS THAT,BECAUSE THE CONSTITUTION
GUARANTEES EQUALITY,THE PENAL CODE WHICH PERMITS MARITAL RAPE,IS “INFERIOR” AND OUGHT TO BE AMENDED.
SOURCES
-India const.sec.63.
– Republic of South Africa const. sec 12.(1)
-Hrishikesh Sahoo v State of Karnataka SLP(Cr.) 2022 (india)
-Sarthak Makkar,Marital Rape: A Non-criminialzed Crime in Inda. Jan 1.(2019) – Raveena Rao Kallarkuru and Pradyumma Soni, Criminilazationn of Marital Rape in India:Understanding Its Constitutional, Culural and Legal Impact 11 NUJS. Rev. 1 (2018)
-Luce Pretorius, SouthAfrica declares gender-based violence a national disaste. But how will frontline workers be kept safe, Senior Lecturer in Social Work, NOrth West University (Dec.9,2025.9:09am GMT,
https://theconversation.com/south-africa-declared-gender-based-violence-a-national-disaster-but how-will-frontline-workers-be-kept-safe-271323?utmmedium=articleclipboardshare&utmso urce=theconversation.com
