AUTHOR : Rimsha Wagle, a first year student at Dharmashastra National Law University
TO THE POINT
Marital rape in India has been granted a legal immunity, Section 63 of the Bhartiya Nyay Sanhita, 2023 (hereinafter referred to as BNS, 2023) criminalises rape but also carves out an exception. Exception 2, states that sexual intercourse by a husband with his wife above 18 years of age is deemed to be not considered as an act of rape. This reflects a historical notion that a wife irrevocably consents to sex or rape as part of marriage. This article examines the genealogy of the marital rape exception and critiques the idea of implied consent in marriage and the doctrine of private spehere. This exception is constitutionally indefensible. Through statutory analysis, various law commission and committee reports, and case laws it is argued that immunity granted to marital rape violates Article 14’s equality guarantree and Article 21’s protection of personal liberty.
ABSTRACT
Marital Rape, which refers to non consensual sex committed by a spouse in a marriage, remains exempt from the section 63 of the BNS, 2023 by exception 2 of the said section. This article traces historical and legal foundations of of the immunity to marital rape it reviews colonial era law, law commission reports and the 2013 Justice Verma Committee recommendations which called for deletion of the exception clause and resonated that consent cannot be determined by the nature of relationship between the complainant and accused as well as the case of RIT Foundation observing a crucial split verdict. This piece majorly criticises the theory of implied consent and the idea of marriage as a private sphere outside the scrutiny of the legal arena, unveiling that these justifications do not hold ground. The article analyses constitutional dimensions and dilemmas
The article surveys key judgements including independent thought and joseph shine and examines judicial views on restitution of conjugal rights. Shielding marital rape from prosecution severely harms the fabric of India’s constitutional values and instills a flawed mentality, the piece therefore discusses the incumbent need for legal reforms.
USE OF LEGAL JARGON
The Marital Rape Exception finds a space in Exception 2 under Section 63 of the BNS, 2023 under which sexual intercourse by a husband with his own wife (not a minor) was not covered under rape. Under this doctrine marriage was considered a contract of perpetuity to have sex as it was referred to as an implied consent theory; it was believed that a wife agrees to all conjugal relations through marriage. It has long been framed by such conceptual jargon as marital immunity, conjugal rights, and private sphere. When considering marriage as the domain of privacy, it must be provided that the state law should not intervene in the case of sexual relations during the wedding. The other such term is restitution of conjugal rights which is a personal law remedy, an illustration, Section 9 of the Hindu Marriage Act, which obliges the parties to cohabit. The legal role of RCR and its interconnection with the consent issues indicates the perception of the special status of marriage by the jurisprudence. The Article also relies on basic rights under the Constitution, and Article14 (equality before law), and Article 21 (protection of life and personal liberty) are referred to as the prisms through which the marital rape immunity is analyzed. Such legal constructs as gender stereotypes and sexual autonomy (which form the basis of contemporary Supreme Court jurisprudence) are the subjects of disapproval of inequality in treatment of husbands and wives under the law
Marital union). Historically this institute was believed to mean that the wife cannot later refuse to have sexual relations; the implied-consent doctrine has led to husbands not being held liable to rape.
THE PROOF
Historical and Legislative Background
The exception of marital rape, in Section 63 exception 2 of the BNS, 2023 finds its counterpart in the Section 375 exception 2 of the Indian Penal Code, 1860, traces back to colonial law. Early rationales considered women as dependent under the law on husbands (even chattel) and assumed consent through marriage. The 42nd Law commission Report (1971) whereby marital non-consent in the married separated spouses was recognized and it recommended Exception 2 not to be applied where there existed judicial separation between the husband and the wife. The criminal Law Amendment act 2013, protected spouses undergoing separation or living separately from marital rape. Nevertheless, that Report continued to contemplate marital rape as different in a particular way, to the extent that separate, less serious punishment was recommended when a husband rapes a wife in the age range of 12-15 years. The 172nd Law Commission Report (2002) observed arguments made by ‘Sakshi’ – a women’s right org. that when other acts of spousal violence are criminalised why there exists a lack of coherence in exempting rape but the commission nevertheless decided to preserve the exception, on the basis that it would be an undue interference with the institution of marriage.
In 2013, Criminalization in entirety was recommended in an attempt by the J.S. Verma Committee (constituted following the Delhi gang-rape case). The Report by the Committee was explicit in this whether the exception clause should be removed which was also stated clearly that marital status as an excuse to non-consensual sex should not be tolerated. The committee asserted that such primitive notions should not protect perpetrators. It criticized the rationale behind the exception as the idea of property, it remarked that the immunity was based on a stagnated view of women as the property of men and that, in contemporary marriage, the roles of both parties are equal and hence the exception cannot stand. Regardless of this, the Criminal Law (Amendment) Act 2013 which was a result of the reporting of the Committee did not repeal the exception on marital rape. The amendments were then looked at by a later Parliamentary Standing Committee which proposed exception 2 be deleted but Parliament refused. Statutory reform has therefore stagnated even though it is being called upon by experts.
Contemporary legal developments
In 2017, a bengaluru women accused her husband of rape among other offences. The husband invoked the exception. A single judge bench of the High Court declared the exception unconstitutional as the exception was regressive and violated right to equality and it should not become a licence to commit a crime, however an interim stay was granted by the Apex Court for the order passed by the High Court.
In May 2022, in the case of RIT foundation v. Union of India, the Delhi High Court handed down a split verdict. Under Exception 2 of Section 375, Rajiv Shakdher viewed it as unconstitutional on the ground that it is in contravention of Articles 14 and 21, and that marriage cannot be used to infringe fundamental rights. Justice C. Hari Shankar, on the other hand, permitted the exception because he regarded sex within the bond of a marriage as a “reasonable expectation.” Neither two judges allowed dismissal of the appeal of the case to the higher court (Supreme Court), so the issue remains unanswered.
Bharatiya Nyaya Sanhita, 2023, has been enacted by Parliament on 21 December 2023, it still retains the marital rape exception in Section 63, but has simply raised the age of wife to 18 years.
In 2024, the Union government filed an affidavit opposing the omission of the marital rape exception.
Constitutional Analysis
The Exception contravenes both equality and liberty guarantees. Under Article 14 of the Indian Constitituion, any classification must be based upon intelligible differentia and should possess rational nexus towards its objective but the exception creates an arbitrary distinction between unmarried and married victims of rape. In the case of Independent Thought, the Apex Court struck down the exception for minors believing that marriage was not reason to treat a child bride differently. Under Article 21 of the Indian Constitution, non consensual sex by anyone including a husband violates a person’s bodily dignity and integrity. The AP court in the case of T. Sareetha v Venkata Subbaiah deemed Section 9 of the Hindu Marriage Act as unconstitutional and underscored the paramount importance of personal liberty, autonomy and dignity over archaic legal constraints.
By parity of reasoning granting immunity to marital rape and compelling unwilling sex infringes the same autonomy, dignity and liberty.
Alternatives such as divorce and domestic violence remedies remain inadequate and do not provide for criminal punishments. There exists lack of a workable alternative which results in increased trauma to the bona fide victim leaving the wives without recourse where domestic violence law do not provide criminal punishment for the rape, no robust avenue caters to the needs of a huge class of women suffering at the hands of the husbands who vowed to protect.
The legal immunisation rests upon outdated premises of perpetual consent and privacy and cannot be squared with constitutional commands, the clause survives as a mere relic of past norms which now must fall.
CASE LAWS
INDEPENDENT THOUGHT V UNION OF INDIA
The court in the landmark judgement upheld that in the context of child marriage sexual intercourse with a wife between 15-18 years of age even within marriage will be deemed rape and the exception in this particular case shall not apply aligning with the POCSO Act’s protection of minors.
RIT FOUNDATION V UNION OF INDIA
An NGO RIT Foundation, with other parties filed petitions challenging the exception at the Delhi High Court. A two judge bench comprising justice Shakdher and Shakar delivered a split verdict. Justice Shakdher was of the view that the exception of marital rape was unconstitutional as it was discriminatory and violated bodily autonomy and dignity whereas justice shankar observed that in the sacred institution of marriage, sexual relation regardless of the consent are a legitimate expectation, deeming the expectation legal and allowing the exception.
JOSEPH SHINE V UNION OF INDIA
The five judge bench had struck down the adultery law and had declared it unconstitutional. The case upheld the importance of realising bona fide and true dignity. They observed that familial structures cannot be regarded as private spheres wherein constitutional rights can be violated. The case had relied upon landmark judgements such as Puttaswamy v UOI and Navtej singh johar v UOI to emphasise the importance of agency as well as choice in the private spheres of marriage.
CONCLUSION
Marital immunity for rape is a vestige of an era when wives had no independent legal agency of their own. The exception of marital rape manifests as a glaring anomaly in Indian criminal law. Where the rest of the legal system recognises consent, bodily autonomy and dignity as rights that are non negotiable, this exception creates a class of women, married women, who are excluded from equal protection. The justifications of implied consent, preservation of sanctimonious institution and private sphere do not withstand scrutiny. They ultimately conflict with the constitutional values of dignity, autonomy and equality.
India’s jurisprudence is evolving, in Independent Thought and Joseph Shine, the judiciary has already started eroding the privileges provided by the sanctimonious institution, and legal scholars have successfully contended that the Exception to Section 63 of the BNS, 2023 is untenable. Conversely, marital rape is considered as a criminal offense in most democracies.
In conclusion, the traditional teachings that uphold the immunity to marital rape cannot be justified. It violates the basic rights of women and it upholds gender disparity and criminalising the exception will keep the sanctity of the constitution intact . The law makers ought to take heed of the Justice Verma Committee and do away with the exception clause. This will bring the laws of India in line with the Indian constitution and the international standard of human rights. Marriage should not be a license to break integrity and the liberty of a marriage partner. The term Marital Rape itself carries with it the word rape and still finds protection in the golden annals of the constitution. The husbands should not use the exception as a shield to sever the dignity they once vowed to preserve. The constitution itself should not become a license to commit crimes.
FAQs
What is Indian marital rape exception?
Section 375 IPC defines rape as a very broad term but this has been exempted in Exception 2 which exempts sexual intercourse of a husband with his natural wife (above a certain age) from this offence of rape. The husband cannot be convicted of rape under law in case the wife is older than 18 (previously 15). This way, the practice of marital rape has been decriminalised, comparing to the rape by any other individual, in a direct contrast. This section now finds space in section 63 of the BNS, 2023.
Does the marital rape exception violate the basic rights of the women?
Yes. The critics state that it cannot lead to the violation of the Article 14 guarantee of the right to equality and the right to life and liberty guaranteed by Article 21. Through the exemption of the husbands, the law establishes an absurd distinction between married and unmarried rape victims. It also robs married women the autonomy over her body and dignity that everyone can enjoy under Article 21. The exemption clause is a complete constitutional defiance since marriage ought not to deprive a woman of her constitutional rights. Exemption of marital rape to prosecution contravenes women equality and personal freedom affirmed by the Constitution.
What is restitution of conjugal rights (RCR) and how have the courts dealt with the same?
RCR is a remedy of personal law (e.g. based on Hindu Marriage Act) and it allows the court to rule that the spouses should cohabit when one partner walks away. The AP High Court ruled against RCR as unconstitutional and reasoned that compelling a wife to live with one infringes her Article 21 personal liberty (no state can direct sexual relations). On the other hand, Harvinder Kaur case states that: The Delhi HC affirmed the RCR law, and considered it not only making marriage protective but also as something that does not force sex. Such divided decisions indicate anxiety: some consider any form of involuntary conjugal access to be a violation of the rights, and some consider it a self-consenting delicacy of marital obligation.
