Authored By: Rabiya Parveen
Law Centre-II, University of Delhi
Abstract
One of the most disputed constitutional issues in India is the criminalisation of marital rape. Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023,[1] disregards non-consensual sexual intercourse between a man and his wife as rape in appreciation of a colonial definition of marriage. This article focuses on the constitutionality of the marital rape exception, considering the changing jurisprudence regarding equality, dignity, privacy, and bodily autonomy. It scrutinizes issues both supporting and opposing criminalisation, as well as evaluates whether change should come with judicial interpretation or legislation.
Introduction
The debate of whether non-consensual sexual intercourse under marriage shall be identified as rape is at the border of constitutional morality and social customs. Exception 2 to Section 63 Bharatiya Nyaya Sanhita, 2023 (BNS) excluded sexual intercourse or sexual activities of a man with his own wife when she is not a minor of less than eighteen years of age as rape. This provision is an extension of the spousal exception, which was earlier found under Section 375 of the Indian Penal Code, 1860.[2]
The impact of such an exemption is to establish a legal difference between married women and unmarried women and deny married women the equal protection of rape law that others receive. In the era where constitutional jurisprudence is becoming more and more receptive to the dignity, privacy, and bodily autonomy as key components of fundamental rights, the persistence of the marital rape exception raises significant constitutional questions. The debate should thus be discussed in the light of Articles 14, 15, and 21 of the Constitution of India.[3]
History and Colonial Tradition.
The marital rape exemption can be traced back to English common law. A doctrine that Sir Matthew Hale expressed in the seventeenth century stated that when a wife marries, she irrevocably consents to sexual intercourse.[4] This implied-perpetual-consent theory has subsequently been included in colonial criminal codes, such as the Indian Penal Code of 1860.
Though the IPC is now superseded by the BNS, the conceptual basis of the spousal immunity is more or less similar. The initial reason was based on the concept of marital unity, according to which the legal identity of a wife was subsumed in the legal identity of her husband. This kind of reasoning was based on patriarchal and property-oriented ideas of marriage, not on contemporary constitutional principles based upon individual liberty.
Though many jurisdictions have abolished the marital rape exemption, India has made no effort to repeal it, continuing a legal controversy dating back a long time.
Constitutional Framework
Article 14: Equality Before the Law.
Article 14 ensures equality before the law and equal protection under the law. The marital rape exception is a classification dependent on marital status. To pass the constitutional test of such classification, it should meet the test of reasonable classification, that is, intelligible differentia, and a logical nexus with the object intended to be secured.
The rape law is aimed at criminalising non-consensual sexual intercourse. The need of consent is still essential even in the context of marriage. Consequently, it does not seem possible to rationalise the exclusion of husbands against charges on the same acts that would otherwise be considered rape based on rational nexus. The difference arguably translates to unequal protection of bodily integrity.
Article 15: Non-Discrimination.
Article 15 forbids any form of discrimination based on sex. Despite the gender-specific wording of Section 63 of the BNS, the effects of the spousal exception have an understandable disproportionate impact on women. The law, by denying protection against crime to married women, increases structural inequality in marriage.
Substantive equality in the constitution demands that the State eliminate, instead of maintain, legal frameworks supporting gender hierarchy.
Article 21: Dignity, Liberty, and Life.
Article 21 was greatly broadened in its interpretation during the last decades. The right to life has, in turn, come to encompass the right to life with dignity, privacy, and body autonomy.[5] Consent continues to play a central role in a sexual relationship, as judicial acceptance of decisional autonomy in intimate matters underlines.
When sexual consent and body integrity are inherent in dignity, then a supposedly irrevocable consent in marriage is constitutionally objectionable. The constitutional morality, as expressed in various decisions, requires that individual rights take precedence over social convention in cases where the two clash.[6]
Judicial Developments
The constitutionality of the marital rape exception under the IPC and under the BNS has been questioned before several High Courts. It took a notable twist when a Division Bench of the Delhi High Court gave a divided opinion on the question, indicating differences in opinion as to whether the exception infringes fundamental rights.[7]
The case has now been in the Supreme Court, with the main issues being equality, autonomy, and judicial intervention. Courts have been in a delicate situation of balancing their deference to the policy of the legislature and their obligation to strike down the provision that denies the constitutional guarantees.
Reasons to Support Criminalisation.
The proponents of criminalisation argue that marriage cannot be a blanket permission to access sex. The consent should be explicitly and freely an active component of any sexual intercourse. The acknowledgement of marital rape as a crime would incline the criminal law with the constitutional concept of dignity and autonomy.
As evidenced by comparative jurisprudence, the marital rape exemption has been eliminated in several countries, such as the United Kingdom and Canada. This is indicative of a broader change in the appreciation of individual rights in marriage. The inconsistency over other kinds of domestic violence being subject to penalty, but non-consensual sexual violence in marriage being left out of rape law, would also be eliminated through criminalisation.
Reasons Against Criminalisation.
Critics suggest that the criminalisation of marital rape would cause issues with evidentiary cases, considering the confidentiality of marital relationships. Determining the absence of consent can be complicated in current domestic set-ups.
It is also feared about the possibility of abuse of the provision in the course of matrimonial disputes. Others believe that reform ought to be determined by extensive legislative discussion as opposed to judicial invalidation of a statutory exception. The marriage institution, it is argued, is a delicate subject that demands thorough consideration before imposing criminal punishments that can lead to the destabilization of families.
Nevertheless, opponents to this argument argue that speculative abuse does not warrant the denial of constitutional protection to married women.
The Way Forward
Reform should be brought to balance constitutional safeguards and procedural provisions. The BNS framework can help to prevent frivolous prosecution, protections provided under due process, by legislative intervention to clarify the evidentiary standards.
A more gender-neutral drafting approach can also be reviewed, in line with the changing perceptions of sexual violence. Consequently, whether it is by reform through judicial review or parliament, the guiding principle must be the protection of individual autonomy within marriage.
Conclusion
The marital rape exception remains the law so far in the 2023 Bharatiya Nyaya Sanhita, testifying to the continuation of the colonial doctrine in the modern Indian criminal law. Although social and evidentiary issues have to be taken seriously, they need to be weighed with constitutional mandates of equality, dignity, and autonomy. With further development of Indian constitutional jurisprudence, the validity of spousal immunity is going to be further evaluated in accordance with the fundamental rule that even in marriage, the validity of consent cannot be assumed.
Reference(S):
Statutes
Bharatiya Nyaya Sanhita, No. 45 of 2023, § 63, Exception 2 (India).
Indian Penal Code, No. 45 of 1860, § 375, Exception 2 (India) (repealed 2023).
INDIA CONST. arts. 14, 15, 21.
Cases
Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1 (India).
Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1 (India).
RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404 (India).
Independent Thought v. Union of India, (2017) 10 S.C.C. 800 (India).
Foreign Comparative References
R v. R [1992] 1 A.C. 599 (H.L.) (appeal taken from Eng.).
Criminal Code, R.S.C. 1985, c C-46, § 278 (Can.).
Historical Source
1 MATTHEW HALE, HISTORIA PLACITORUM CORONAE 629 (1736).
[1] Bharatiya Nyaya Sanhita, No. 45 of 2023, § 63, Exception 2.
[2] Indian Penal Code, No. 45 of 1860, § 375, Exception 2 (repealed 2023).
[3] INDIA CONST. arts. 14, 15, 21.
[4] 1 MATTHEW HALE, HISTORIA PLACITORUM CORONAE 629 (1736).
[5] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
[6] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
[7] RIT Found. v. Union of India, 2022 SCC OnLine Del 1404.
