Author: Isha Gurung, NEF Law College
ABSTRACT
The debate surrounding marital rape has been going on for decade. While many argue that marital rape should be criminalised to protect the bodily autonomy and dignity of a married women, other oppose its criminalisation on the ground that it may undermine the institution of marriage. The ongoing debate on the criminalisation of marital rape reflects a conflict between the preservation of marriage and the protection of a women’s fundamental right to dignity, bodily autonomy, privacy and equality
The central government of India has consistently opposed the criminalisation of the marital rape, arguing that such recognition may destabilise the institution of marriage, which is regarded as scared in Indian society, and may lead to increase in the matrimonial dispute and divorce. However, these concern often over shadow the lived experience of countless women who continued to endure sexual violence in a marriage without adequate protection. This assumption that marriage implies irrevocable and perpetual consent to sexual relationship is inconsistent with the constitution principle and modern human right standard.
This paper critically examines the existing legal position in India, analysis constitutional and human right perspective evaluates judicial development and comparative international approach and argue for the legal recognition of marital rape as a necessary step toward ensuring justice, gender equality and the protection of the women’s fundamental right.
TO THE POINT
Marital rape refers to non-consensual sexual intercourse or sexual acts committed by a husband against his wife, where the absence of consent constitutes sexual violence, irrespective of the marital relationship. In contemporary legal theory, the defining element of rape is lack of consent, not the identity or status of the perpetrator. Although rape has been considered as a criminal offence under the Indian law, marital rape continues to remain largely outside the ambit of criminal law in India due to marital rape exception. Therefore, it is one of the most pervasive yet legally under recognised form of sexual violence against married women in India. The gravity of the issue is evident from the empirical studies. According to the National Family Health Survey, approximately 82 % of married women who reported experiencing sexual violence identified their husband as the perpetrator. Despite its widespread prevalence, marital rape continued to receive inadequate legal recognition and protection leaving countless women without an effective legal remedy.
Historically, the marital rape exception emerged from English common law, which treated a wife as legally subordinate to her husband and presumed that marriage entailed irrevocable sexual consent. This doctrine was absorbed into colonial Indian criminal law and continues to influence Section 375 of the Indian Penal Code, and is still relevant under the provision of BNS 2023. This exception rests on outdated notions of marital unity and female subordination rather than on contemporary principles of equality and autonomy. Ironically, the very country from which India inherited this doctrine abolished marital rape exemption decade ago through judicial and legislative reform.
The union government is of the opinion that criminalising marital rape would undermine the institution of marriage, such argument invites a critical question; can a marriage truly be regarded as stable if its continuation depends on the women’s silence, suffering and endurance rather than on mutual respect and consent?
The union government further argued that a marriage carries a legitimate expectation of sexual relationship between spouse however this assumption effectively strips down the women’s bodily autonomy and sexual agency by implying that marriage constituted perpetual consent, thereby denying the right to refuse or withdraw consent. This belief also contributed to the significant underreporting of marital rape. Studies suggest that 90% of the women who experience sexual violence in a marriage do not seek help because they themselves does not recognise it as an offence and see it as a husband’s right
USE OF LEGAL JARGON
The legal recognition of marital rape remains one of the most contention issue in contemporary Indian criminal jurisdiction. While several countries have criminalised marital rape, India continue to retain the marital rape exception under Exception 2 to Section 63 of the BNS,2023 which provide that sexual intercourse or sexual act by a man with his own wife, provided that she is not under the age of 18 year, do not constitute the offence of rape. Consequently, while Section 64 of the BNS prescribe rigorous imprisonment for not less than 10 year which may extent to life imprisonment along with fine for the offence of rape, such punishment ordinary does not apply where the accused is the husband and the act fall within the scope of the statutory exception.
The continue exception has attracted significant constitution legal and human right criticism. It argues that law create an artificial distinction between the married and unmarried women, thereby denying equal protection against sexual violence.
Violation of article 14
Article 14 of the constitution provide for right to equality before law and equal protection of law to every person. However, the marital rape exception creates an unreasonable and discriminatory classification based solely on the marital status of the victim.
The BNS criminalised non-consensual sexual intercourse as rape but simultaneously exclude the same act from criminal liability when it is committed by her own husband, provided that the wife is above the age of 18 years. Consequently, two women who suffer the same act of sexual violence received entirely different legal treatment merely because one is married while other is not. Rape is rape whether it is committed by a stranger or by her own husband. The constitutional guarantee of equality cannot be made contingent upon the marital status of the women. A married women should also be entitled of the same legal protection against the sexual violence as any other women.
Violation of Article 21
Article 21 guarantee that no person shall be deprived of their life or personal liberty except for the procedure of the law. Article 21 also guarantee the right to live with dignity, bodily autonomy, privacy, and decisional freedom. By refusing to recognise marital rape as a criminal offence, the existing legal framework effectively denies married women the full protection of Article 21. Such an approach is inconsistent with constitution principle that every individual has the right to make autonomous decision concerning their own body irrespective of marital status
THE PROOF
Empirical evidence suggest that sexual violence in a marriage is considerably more prevalent than the official criminal statices indicate. According to the National Family Health Survey (NFHS-5 2019-2021) 82% of the women who had experience sexual violence identified their husband as the perpetrators. However, the actual extent of the marital rape remains largely concealed due to significant underreporting. A comparative study based on NFHS and the National Crime Bureau (NCRB) data found that less than 1% of the indication of sexual violence by the husband are reported to the police. This disparity may be attributed to social sigma, economic dependence, family pressure and the absent of explicit criminal recognition of the marital rape in India.
CASE LAW
1. INDEPENDENT THOUGHT VS UNION OF INDIA
Under this case the Supreme court recognised that marriage cannot be used to deprive a minor girl of protection against sexual violence. It struck down Exception 2 to section 375 of IPC (section 63 of the BNS) stating that having sexual intercourse with a minor wife below the age of 18 is rape. This judgement made a significant step toward recognising bodily integrity and equal protection under the constitution
2. JOSEPH SHINE VS UNION OF INDIA
The supreme court of India in Josph Shine vs Union of India affirmed that marriage does not subordinate a women’s autonomy to that of her husband. This reasoning has become a significant constitutional basis for argument supporting criminalising of marital rape
3. JUSTICE K.S. PUTTASWAMY (Retd.) VS UNION OF INDIA
The supreme court in this case recognised the right of privacy and bodily autonomy in K.S. Puttaswamy strengthens the argument that a married women retain the right to refuse sexual intercourse and that married cannot extinguish constitutional protection.
CONCLUSION
The issue of marital rape in India exposes a fundamental tension between entrenched social norms and evolving constitutional values. This study has reveals that the continued exclusion of marital rape from the ambit of criminal law is rooted in patriarchal assumptions that treat marriage as a private domain immune from legal scrutiny and presume irrevocable consent on the part of wives. Such assumptions have raises serious concern regarding women rights, dignity, bodily autonomy, privacy, and substantive equality as core components of individual rights. By denying married women protection against non-consensual sexual acts, the existing legal framework creates an unjustified and discriminatory distinction that is incompatible with Articles 14, 15, and 21 of the Constitution.
FAQs
1. What is marital rape?
Marital rape refers to the non-consensual sexual offence or any other sexual act committed by one spouse against the other without free and voluntary consent.
2. Is marital rape a criminal offence in India?
No, marital rape has not been recognised as a crime in India.
