Authored By: Priyanka Oraon
Jogesh Chandra Chaudhuri Law College
Introduction
Marital rape refers to non-consensual sexual intercourse by a husband with his wife unlike rape committed by stranger such acts take place within the institution of marriage which is protected from criminal liability under Indian Law. This protection is derived from an old belief that a permanent consent to sexual intercourse is given by a wife upon marriage.[1]This is a part of Indian law since colonial times unchallenged for over 160 years[2].
When the Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code 1860 hoped there might be change in the laws. Yet the exception has been maintained under Section 63 of the BNS[3],with only the minimum age of the wife being increased from 15 to 18 years as mandated by the courts in 2017[4].
Legal Position
Section 375 of IPC says husband could not be charged with rape if his wife was over 15 years of age.This provision exempted husband from rape charges regardless of the wives consent. The exception was not removed or amended by Parliament even after the enactment of the 2013 Criminal Law (Amendment) Act which was introduced to reform sexual offences laws following Nirbhaya case. [5]The exception has been retained for over a century.
In Independent Thought v. Union of India, it was held by the Supreme Court that the exception was arbitrary and violative of Articles 14 and 21 but no determination was made regarding its constitutionality in relation to adult wives[6].Non-consensual marital intercourse was recognized as domestic violence by the Kerela High Court but no call for charges was made. [7]A growing judicial discomfort has always been reflected yet no binding decisions exists.
III. What the BNS Says: Changes and Continuities
The definition of rape under the BNS Section 63 copies the IPC and the minimum age of the wife is raised to 18 as per the Supreme Court’s order yet keeps the husband immunity intact. BNS authorities cannot prosecute a husband for raping his adult wife. Even with repeated call for reforms lawmakers have taken no steps. BNS skips any marital rape crime and wife safeguards and wasted a prime chance for real reforms.
Constitutional Concerns
Article 14: Right to Equality
It ensures equality before the law. [8]Yet the exceptions denies married women lose rape safeguards and unmarried ones doesn’t. Wives cannot take action against their husbands for rape so this difference has no reasonable basis. In Independent Thought v. Union of India, the Supreme Court called this exception arbitrary[9]
Article 21: Bodily Autonomy and Dignity
In Justice K S Puttaswamy (Retd) v Union of India (2017) it was said by the Supreme Court that the right to privacy includes control over one’s body and personal choices.[10]Wives can say no to sex its their core autonomy. This right is denied by the marital rape exception and a wife’s bodily integrity is subordinated to her husband’s interests which is considered blatantly unconstitutional.[11]
Judicial Trends and Pending Debates
The Delhi High Court’s Split Verdict
In RIT Foundation v. Union of India, a split verdict was delivered by the Delhi High Court. [12]The exception was held unconstitutional by Rajiv Shakdher on the ground that Articles 14, 15, and 21 were violated and that a patriarchal belief was reflected. C.Hari Shankar expressed a contrary view and disagreed valid law. Parliament’s choice and courts can’t agree if the Constitution demands change.
Supreme Court Yet to Rule
The split verdict heads to the Supreme Court Independent Thought v. Union of India it was stated that a wife is not the property of husband, and a contradiction with the existing exception is thereby created with the BNS in force, an urgent examination of Section 63 is required.
Comparative Perspective
The issue already addressed in other countries like in United Kingdom the marital rape exception was struck down by the House of Lords in 1991 and the idea of implied consent in marriage was rejected. [13]By 1993 , marital rape had been criminalized in all states of the United States through legislation and judicial decisions.It is criminalized in South Africa under the Sexual Offences Act, 2007 and in Nepal in 2009. [14]India is now considered to be among the one of retain an outdated doctrine few nations still allowing exemptions.
Did BNS Miss an Opportunity?
Supporters claim marriage needs shielding, civil remedies suffice and false cases loom. False claims haunt every crime yet we don’t have protections for all Criminal law condemns and Civil suits negotiate.The real problem is marriage somehow erases consent, trampling individual rights for tradition. BNS aims to reform India’s criminal law and move away from colonial legacies Yet lawmakers clung to colonial relics missing real reform.This decision shows a failure of legal comparative and moral reform. Therefore BNS missed an important opportunity for meaningful change.
VIII. Conclusion
The marital rape exception under Section 63 of the BNS is considered constitutionally weak and inconsistent with global standards. It argued that Articles 14 and 21 are violated in this exception.The reasons for its retention are not very convincing, and a crucial opportunity for reform has been missed.
Recommendations:
1- Parliament must delete Section 63 marital rape exemption.
2 – Training should be given to law enforcement and judicial officers to tackle the cases of marital sexual violence.
3 – Build real supports system so that survivors could get justice.
4 – A clear and quick judgement should be issued by the Supreme Court in the RIT Foundation v. Union of India matter.[15]
Equal legal protection should be given to married women and must be clearly recognized by law and immediate action should be taken.
Cases:
Independent Thought v. Union of India (2017) 10 SCC 800
KS Puttaswamy v. Union of India (2017) 10 SCC 1
Nimesh v. State of Kerala (2021) SCC OnLine Ker 2966
R v R 3 WLR 767 (UK House of Lords)
RIT Foundation v. Union of India (2022) SCC OnLine Del 1344
Statutes:
Bharatiya Nyaya Sanhita, 2023 § 63 | IPC § 375 Exception 2 | Domestic Violence Act, 2005 | Criminal Law Amendment Act, 2013
[1] See 1 Matthew Hale,Historia Placitorum Coronae 629 (1736).
[2] Indian Penal Code, No. 45 of 1860, § 375, Exception 2.
[3] Bharatiya Nyaya Sanhita, No. 45 of 2023, § 63.
[4] Independent Thought v. Union of India, (2017) 10 SCC 800.
[5] Criminal Law (Amendment) Act, No. 13 of 2013.
[6] Independent Thought, (2017) 10 SCC at 812
[7] Nimesh v. State of Kerala, 2021 SCC OnLine Ker 2966.
[8] India Const. art. 14.
[9] Independent Thought v. Union of India, (2017) 10 SCC at 812.
[10] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
[11] India Const. art. 21.
[12] RIT Foundation v. Union of India, 2022 SCC OnLine Del 1344.
[13] R v. R, [1991] 3 WLR 767 (HL).
[14] Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (S. Afr.).
[15] RIT Foundation, 2022 SCC OnLine Del 1344.
