Abstract
This study examines the important problem of marital rape in India, a serious human rights abuse that is not sufficiently addressed by the country's current legal systems. Even though the Bharatiya Nyaya Sanhita, 2023, recognizes rape as a serious crime, the continued legal exemption for husbands, which shields them from prosecution for raping their wives unless the victim is a minor, upholds the values of bodily autonomy and dignity and fosters a culture of impunity. This study uses the constitutional safeguards of Articles 14, 15, 19, and 21 to support its urgent need to punish marital rape by overturning the antiquated laws that permit this legal blind spot. The article exposes the inconsistencies in the Indian legal system, which, despite recognizing the fundamental right to life and personal dignity, does not shield women from sexual abuse in marriage. It does this by critically examining important cases and current legislation. The results highlight the need for legislative change to guarantee that marriage remains a partnership based on equality and respect for one another rather than serving as a cover for abuse.
Introduction
The term "marital rape" describes undesired sexual relations between a husband and wife that is achieved by coercion, threats of coercion, or physical violence, or when the wife is incapable of giving consent. When a husband violently perverts his wife by abusing her physically and sexually, it is not consenting. Marital rape is more than just a violent assault; it is a serious betrayal of the institution that is meant to provide intimacy, safety, and respect for one another. But as of right now, the law in India still protects this barbarism under the pretence of marriage. The urgent need to criminalize marital rape and invalidate Section 63's exemption 2 of the Bharatiya Nyaya Sanhita, 2023, will be the focus of this research paper. This research report illustrates how these justifications for not making marital rape a crime appear to be false. Based on a representation of Articles 14, 15, 19, and 21 of the Indian Constitution, this research paper argues that the Bharatiya Nyaya Sanhita, 2023's spouse rape exemption provision might in fact be declared unlawful. Although Section 63 of the Bharatiya Nyaya Sanhita, 2023 (formerly Section 375 of the Indian Penal Code, 1860 (IPC)) makes rape a crime in general, the outdated provision that states a husband cannot be prosecuted for raping his wife unless she is under the age of 18 continues to be a dark stain on the nation's legal system. Not only is this legal immunity out of date, but it also directly violates women's fundamental rights, dignity, and physical autonomy. According to the Supreme Court's ruling in Bodhisattwa Gautam v. Subhra Chakraborty, "rape is a crime against basic human rights and a violation of the victim's" most important fundamental right, which is the right to life guaranteed by Article 21 of the Constitution. However, it contradicts this very statement by failing to acknowledge marital rape. Domestic violence laws in India have made considerable progress, although they have mostly only addressed physical assault rather than sexual abuse. Due to a general marital rape exemption in Section 63 of the Bharatiya Nyaya Sanhita, 2023, Indian law currently denies state protection to women who endure and want to contest sexual assault from their spouses.
Types of marital rape
The following three kinds of marital rape are identified by legal scholars as generally prevalent in the society:
- Battering rape: In “battering rapes”, women experience both physical and sexual violence in the relationship and they experience this violence in various ways. Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category.
- Force-only rape: In what is called “force-only” rape, husbands use only the amount of force necessary to coerce their wives; battering may not be characteristic of these relationships. The assaults are typically after the woman has refused sexual intercourse.
- Obsessive rape: Other women experience what has been labelled “sadistic” or “obsessive” rape; these assaults involve torture and/or “perverse” sexual acts and are often physically violent.
Marital Rape is the Pernicious Legacy of Patriarchy: Historical and Legal Perspective of Marital Rape
The origins of marital rape immunity can be traced back to a time when women were viewed as men's property, a remnant of colonial law that saw wives as extensions of their husbands. Marriage was regarded as an unbreakable bond of consent, reducing women to mere sexual objects. In modern India, this legacy lives on as a warped type of patriarchy that governs the laws of the land. The exception not only undermines the concept of consent in marriage, but it also supports a culture in which women's rights over their own bodies are subordinate to their husband's wishes.
The exception not only undermines the concept of consent in marriage, but it also supports a culture in which women's rights over their own bodies are subordinate to their husband's wishes.
The exemption 2 to Section 63 of the Bharatiya Nyaya Sanhita 2023 is a Constitutional Farce. The protection of husbands under this exception to Section 63 is an untenable contradiction. Section 63 recognizes rape as a violent crime that undermines a woman's autonomy; nonetheless, its exception absolves husbands of criminal accountability if they commit such violence. This dualism goes against the constitutional rights of equality and personal liberty. This provision severely undermines Articles 14 and 21 of the Indian Constitution, which protect the right to equality and the right to life with dignity, respectively. In its current form, the law allows for the degradation of women in the name of marriage, thereby supporting sexual slavery in married partnerships.
While Indian courts have occasionally demonstrated progressive intent, they have been hesitant to totally repeal the marital rape exemption. In Independent Thought v. Union of India , the Supreme Court criminalized sexual intercourse with a wife under the age of 18, defining it as statutory rape. However, this decision stopped short of addressing the larger question: why should age be the determining factor in whether or not a wife's sexual liberty is respected? The courts have missed numerous opportunities to test the validity of the marital rape exception, frequently deferring to the legislators, despite the terrible injustice that such silence perpetuates.
Marital rape is a sociocultural myth that portrays marriage as a license to exploit. The opposition to criminalizing marital rape stems from a strongly rooted social notion that marriage provides unrestricted sexual access to one's spouse. This myth holds that sexual permission is an unbreakable part of marriage, ignoring a woman's right to rescind consent at any moment. Consent cannot be married away. It also reinforces a pernicious narrative that normalizes violence inside the sanctity of marriage. The argument that criminalizing marital rape would "destroy the family unit" is nothing more than a smokescreen designed to retain male supremacy while protecting the institution of marriage. In the case of Nimeshbhai Bharatbhai Desai vs State of Gujarat , it was stated that “Marital rape is in existence in India, a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalization of the practice.” Rape is a heinous crime that has multiple consequences including mental trauma and severe adverse medical effects.
It would be arbitrary to decriminalize marital rape on the ground that by entering into matrimony, a woman consents to a continued sexual relationship with her husband from which she cannot retract, the Gujarat High Court submitted that marital rape is not just a concept and the notion of 'implied consent' in marriage and should be collapsed.
In the case of Harminder Kaur vs. Harmander Singh,The Delhi High Court ruled that the Indian Constitution could not intervene in home problems since it would destroy the institution of marriage. The court further found that "in the privacy of the home and married life neither Article 21 nor Article 14 of the Indian Constitution have any role to play". In the State of Maharashtra & Anr. vs. Madhukar Narayan Mardikar, the Supreme Court asserted that every woman has the right to privacy and it must not be violated. After the Nirbhaya rape case in 2012, the Justice Verma Committee had suggested criminalizing marital rape and said that marriage didn't mean an irrevocable consent to sexual activities. However, the Government of India ignored the suggestion. In 2015, the RIT Foundation filed a Public Interest Litigation in the Delhi High Court, seeking the immunization of marital rape under Section 375 of the IPC (now Section 63 of Bharatiya Nyaya Sanhita 2023) on the basis of a violation of fundamental rights guaranteed by Articles 14, 15, 19, and 21 of the Indian Constitution. In 2016, Maneka Gandhi, the then-minister for Women and Child Development, declared that the notion of marital rape could not be applied in India due to illiteracy and poverty, even though it is established and understood abroad. However, in Independent Thought vs. Union of India, the Supreme Court was constrained to revisit some of the theoretical assumptions on which the marital rape exemption is based as it infringes constitutional rights of girls who are married between the age of 15 and 18 years. In the stage of provisions of section 375 Sixthly, IPC, section 3 & section 5 of the "Protection of Children from Sexual Offences Act, 2012 (POCSO Act)" and section 3(1) of the "Prohibition of Child Marriage Act, 2006 (PCMA)" pursued with the legislative intent and silhouette of apt provisions of the "Juvenile Justice (Care and Protection of Children) Act, 2015", the "Protection of Women from Domestic Violence Act, 2005 (DVA)" and section 2(d) of the "Protection of Human The law must preserve every woman's (married or unmarried) physical independence. In the case of Anuja Kapur vs. Union of India Through Secretary , Anuja Kapur filed a PIL through the Secretary, requesting that the Court direct the Government of India to issue guidelines and laws regarding marital rape. However, the Supreme Court bench led by Justice SA Bobde and Justice BR Gavai denied the petition, stating that the legislative is responsible for the formation of laws, not the judiciary, and that the court is more interested in interpreting the law than making it. The courts have issued inconsistent decisions, sometimes allowing a husband to be tried for rape and sometimes dismissing the petition. Marriage was a social institution, and the issue presented in the petitions was more social than legal, hence policymaking should be left to parliament. In the case of Hrishikesh Sahoo v. State of Karnataka , the central government’s response in their 49-page affidavit submitted in the Supreme Court on October 17, 2024 has not come as a surprise in a country rooted in patriarchal traditions and where marriages are considered sacrosanct. The report says that marriage is a relationship of a "different class" and has an “entire ecosystem” of laws, rights and obligations. Criminalizing marital rape "may seriously impact the conjugal relationship and may lead to serious disturbances in the institution of marriage”, it stated. The affidavit noted that in a marriage, there was a "continuing expectation to have reasonable sexual access from one's spouse" and while this did not entitle a husband to coerce his wife into having sex, including marital rape under anti-rape laws would be "excessively harsh" and "disproportionate". It added that there were existing laws that dealt with domestic violence, sexual harassment and assault that protected a married woman's rights. In the counter affidavit, the Central Government opposed any court interference in the matter and stated that if at all marital offence is to be made a criminal offence, it is for the Parliament to take a call on this issue after considering inputs from all stakeholders. The Centre's affidavit added that married women are already protected through other laws if they were to face such violence from their husbands, such as through laws against domestic violence and cruelty to married women. The Central government further said that the idea of consent has to be viewed differently in a marriage since there is an expectation of reasonable sexual access from one's spouse within a marriage. It clarified that such expectations do not entitle a husband to coerce his wife to have sex against her will. However, it may be excessive and disproportionate to punish a man under anti-rape laws for such an act, the Centre said.
