Author: Angel Singh, IILM University
ABSTRACT
Marital rape exception in the Indian law is an antiquated law of the most egregious form. It is based on an ancient common law assumption that was abandoned by the English courts more than 30 years ago. It is based on a definition of marriage one in which the woman permanently cedes her right of sexual availability to a husband which no serious legal system can support. It is in contravention of the provision of equality before the law and the right to live with body and dignity . Marital rape is non sexual intercourse committed by a spouse against the other without the free consent , even though they are legally married . Marriage is considering as pure form of union but what if that pure form of union became a prison for a girl which takes away her freedom? The research objective of this legal article isthe marital rape exception constitutionally valid? Does marriage imply irrevocable consent? Should India enact a separate offence of marital rape? How can the law balance protection against abuse with safeguards against false allegations? Marriage does not mean husband gets a license to rape his wife , there shall be a free consent of wife must be there for sexual intercourse . The logic is that when a woman gets married, she is essentially signing a permanent contract that says “yes” to her husband forever, no matter what. It assumes that a wife’s body is no longer her own, but part of a marital deal. I would like to make some suggestions such as Marital rape should be criminalize in India like UK , Canada , Australia . Marital rape shall be consider as a ground for divorce ; Lastly “a rape is a rape it does not matter whether it is marital rape or rape ”
KEY WORDS: CONSENT; CONSTITUTIONALMORALITY; MARITAL RAPE; SEXUAL VIOLENCE; MARRIAGE
INTRODUCTION
when we talk about law we think it as shield which will protect us but in reality Indian law own’ s a spineless lawsector which is well hidden under the disguise of marriage that concept is MARITAL RAPE . Marital rape is non sexual intercourse committed by a spouse against the other without the free consent , even though they are legally married . Marriage is considering as pure form of union but what if that pure form of union became a prison for a girl which takes away her freedom? Does being married means you don’t have any right over yourself and your body. Being married means do we need to face all the abuse whether it is domestic abuse ;emotional abuse and the major the sexual abuse by the spouse.
In marriage does the consent of the women not matter whether the girl want to have sexual intercourse with her husband or not . where is the free consent and will of women. Many women are forced to have sexual intercourse with their husband as an obligation a duty of a wife to satisfy their husband . Just because a girl is married to a boy so now boy hold all rights over women’s body , absolutely not . Marital rape is the serious criminal offence but according to Indian law marital rape is generally not recognized as the offence of rape when a husband have a sexual intercourse with his adult wife due to exception 2 under section 63 of Bharatiya Nyaya Sanhita , 2023 .
Now the question arise that whether the marital rape exception should be struck down or retained remains the subject of significant constitutional and legal debate in India .The research objective of this legal article is the marital rape exception constitutionally valid? Does marriage imply irrevocable consent? Should India enact a separate offence of marital rape? How can the law balance protection against abuse with safeguards against false allegations? This rule is based on a very old and fundamentally flawed idea called “implied consent.” The logic is that when a woman gets married, she is essentially signing a permanent contract that says “yes” to her husband forever, no matter what. It assumes that a wife’s body is no longer her own, but part of a marital deal. But it is now 2026, and our legal world has changed. This article is not just about a legal loophole; it is about a deep unfairness that treats marriage as a license for violence. It is time to stop pretending that a wedding ring is a “get out of jail free” card for a husband’s non-consensual acts.
LEGAL FRAMEWORK
➢ Bharatiya Nyaya Sanhita 2023
Rape is now defined as penetrative sexual acts without the woman’s consent or against her will or with the woman’s consent obtained by coercion, fraud, or incapacity under Section 63 of the Bharatiya Nyaya Sanhita 2023, which replaced Section 375 of IPC. Exception 2 says: “Sexual intercourse or sexual acts by a man with his wife, provided that the wife is not under eighteen years of age, is not rape.5 There are three material consequences to this provision. First, it takes an entire class of sexual violence (husbands against adult wives) out of the definition of rape. Second, it removes the ability to prosecute the crime of rape, which carries a minimum sentence of seven yearsimprisonment, although it may be extended to life. Third, that as a state-sanctioned normatively declared body, it says that a married woman’s body is not as important as the body of an unmarried woman. It is a classification that must be substantiated because the guarantee of equality before the law in Article 14 of the Constitution applies to everyone
➢ PROTECTION AVAILABLE UNDER THE PROTECTION OF WOMEN FROM DOMESTIC VIOLANCE ACT 2005
The Protection of Women from Domestic Violence Act 2005 (PWDVA) is partially addresses domestic violence committed by a husband and sexual violence. The third of that Act refers to “sexual abuse” as being “any conduct of a sexual nature which abuses, humiliates, degrades or otherwise violates the dignity of a woman.The PWDVA is a civil statute, however. It does not allow for criminal prosecution for rape, but can give protection orders, residence orders, and monetary relief. A woman who is forced to engage in sexual activity with her husband in a violent manner can obtain a protection order, but cannot have her husband convicted for the crime of rape. Section 85 of the BNS 2023 penalises cruelty by a husband or his relatives, which can include mental and physical harm. Under this provision, prosecutions have been brought where forced intercourse has also led to physical injury.8 But, the maximum term for cruelty is three years, a dramatic reduction from the rapes’ term, and not as condemnatory. Rape is, at least, the most horrid of all assaults, and to consider it “cruelty” rather than rape is to miss the point of the act and to systematically under-punish the perpetrator.
CONSTITUTIONAL ANALYSIS
➢ ARTICLE 14 EQUALITY BEFORE LAW
The Right to equality enshrined under article 14 clearly states that every citizen of the country is guaranteed the fundamental right of equality before law and equal protection of laws. It is pertinent to mention that the provision has been interpreted by the court as ‘equals should be treated equally’ which means that there is a scope of reasonable classification if the persons in question are a different class of people. In Chiranjit Lal v. Union of India , the Supreme Court of India stated that article 14 implies that equal protection should be provided to all persons situated in like circumstances. In the case of Marital Rape, the argument put forward by the proponents of the exception clause in the IPC is that Marital Relationship between the husband and the wife provides the required reasonable classification for the provision under the IPC to stand the test of constitutionality
➢ ARTICLE 21 RIGHT TO LIFE & PERSONAL LIBERTY
Furthermore, another argument by the opponents is that marital relationship is entailed in the murky waters of private sphere wherein law cannot pervade. The argument has also been endorsed by the judiciary, though not directly with respect to Marital Rape, but certainly in cases related Restitution of Conjugal Rights (RCR). It is important to understand as to why RCR gets a mention here. The Hindu Marriage Act, 1955, under section 9, allows Courts to compel spouses to live together and resume conjugal relationship if they are staying separately without any reasonable excuse.49 Resumption of conjugal relations also takes away the freedom of indulging in sexual relationship from the individual and grants it to the Court or the State. Much akin to this, in the case for Marital Rape, the question is that whether the State can compel a woman to have sexual intercourse with her husband even against her consent. In a nutshell, the questions regarding constitutionality that arises with respect to RCR are the same as in marital rape and therefore, a parallel can be drawn as to how courts have treated the question of privacy and autonomy in case of the former
CASE LAWS
➢ SUCHITA SRIVASTAVA VS. CHANDIGARH ADMINISTRATION
An orphaned woman living in a government run welfare institution in Chandigarh, who had the mental capacity of a nine-year-old, was raped, and subsequently became pregnant while she was living in that institution. The institution’s staff discovered her pregnancy when she was at nine weeks’gestation. Upon this discovery, the Respondent, the Chandigarh Administration, filed a criminal case under Sections 376 and 120B of the Indian Penal Code, 1860, and constituted a medical board to evaluate the mental status of the woman. The medical board opined that the woman had an intellectual disability and was suffering from ‘mild mental retardation’. The expert body further considered that she had no notable emotions regarding the conception of the baby as a result of rape. Furthermore, the expert body found that the woman wanted to continue the pregnancy. Nonetheless, the High Court granted the Respondent permission to terminate the pregnancy. The Appellant approached the Supreme Court challenging the decision of the High Court.
➢ RIT FOUNDATION VS. UNION OF INDIA
In RIT Foundation v. Union of India, the Delhi High Court evaluated the constitutional validity of Exception 2 to Section 375 of the IPC, which criminalized sexual assault by strangers but exempted marital rape. The bench delivered a split verdict, referring the highly debated issue to the Supreme Court for final adjudication The division bench delivered two vastly different opinions:
Justice Rajiv Shaker: Declared the exception unconstitutional. He reasoned that marriage does not imply a blanket or irrevocable consent to sexual intercourse. He stressed that married women have the same right to bodily integrity and personal autonomy as unmarried women, and that the exception perpetuated gender subordination.
• Justice C. Hari Shankar: Upheld the constitutional validity of the exception. He ruled that the legislature deliberately distinguished between marital and non-marital relationships based on intelligible differentia. He emphasized judicial restraint, stating that removing the exception would amount to creating a new offense, which falls under legislative purview rather than the courts.
COMPARATIVE PERSPECTIVE
➢ UNITED KINGDOM [UK]
The marital exemption was officially struck down in 1991 by the House of Lords in the landmark R v R decision, ruling the historical doctrine an anachronistic legal fiction.Marital rape is prosecuted under the Sexual Offences Act 2003. The law defines rape as the intentional penetration of the vagina, anus, or mouth without the victim’s consent.Under Crown Prosecution Service guidelines, it is recognized that consent within marriage can be withdrawn at any time, and coercion is heavily factored into the definition of non-consent .
➢ CANADA
The exemption was abolished legislatively by the Parliament of Canada through an amendment to the Criminal Code (Bill C-127) in 1983. Sexual assault laws in the Canadian Criminal Code do not distinguish between married and unmarried persons. Consent must be active, continuous, and freely given, and cannot be implied by marital status The legal standard requires the Crown to prove the absence of consent. The Supreme Court of Canada (notably in cases surrounding the R. v. Ewanchuk standard) has established that there is no “implied consent” in Canadian law. Educational resources are available via the Department of Justice regarding sexual violence frameworks
➢ AUSTRALIA
occurred progressively across individual states and territories between 1981 and 1992. South Australia led the way by partially removing the exemption in 1976. Because Australia is a federation, criminal codes differ by state, but all jurisdictions (such as in New South Wales or Victoria) criminalize spousal rape. Australian courts and state-level Legal Aid commissions confirm that marriage cannot be used as a defence to a charge of sexual assault. Maximum penalties can range up to life imprisonment, depending on aggravating factors and state jurisdiction.
CONCLUSION
Marital rape is a rape even though there is no legal law related to this provision related to marital rape in India . Marriage does not give husband a license to rape his wife , there shall be a free consent of wife must be there for sexual intercourse .After marriage it does not mean that a wife loses all her freedom to take decision over her body or her life . To make people aware that marital rape is a criminal offence . If during a sexual intercourse between husband and wife the free consent & will of wife is not present then this shall amount to rape and the husband must be punished by the law , to make people aware regarding marital rape that how grievous this offence is JIOHOTSTAR launch a web series named “CHIRAIYA” under which it shows marital rape is also a rape marriage does not mean husband gets a license to rape a girl . Even though there are women which still faces marital rape but stay quiet because of the social stigma and family pressure . Many people think that it is husband right to claim his wife to have sexual intercourse with her but no it is not only a husband who would hide behind in the name of right and marriage after committing a crime of marital rape , there should be a willing consent of wife shall be consider that if she wants to have sexual intercourse with her husband or not ? whether she is ready for it or not .
Suggestions are
1. Marital Rape should be consider a legal offence and there should be punishment for the it under Indian law .
2. Marital rape shall be consider a ground for divorce
3. Adopt a consent base definition
4. Introduce procedural safeguards
5. Public awareness campaigns shall be organize
REFERENCE
1. BHARATUYA NAYAYA SANHITA , 2023
2. THE PROTECTION DOMESTIC VIOLENCE ACT 2005
3. THE CONSTITUTION OF INDIA
4. INTERNATIONAL HUMAN RIGHTS COMMISSION
5. THE SEXUAL OFFENCES ACT 2003
6. SCC ONLINE
