Author: Ritika Sharma, Lords University, Alwar
ABSTRACT
The Bhartiya Nyaya Sanhita’s (BNS) Section 63, which exempts sexual relations between a husband and wife (over a specific age) from the definition of rape, makes marital rape a very problematic issue in India. Strong social stigma and cultural norms, along with this legal loophole, cause serious underreporting and make it difficult to make marital rape a crime. As a result, victims are kept silent, and the larger problems of gender inequality and the fundamental right to bodily autonomy in marriage are not adequately addressed. This leads to continuous discussions regarding the need for changing the law and raising awareness in society.
INTRODUCTION
Essentially, rape is defined as having intercourse without the consent of one or more partners. Although this is ideally a question of consent, it is made a matter of the victim and the rapist’s connection. Marital rape is the most prominent instance, in which the husband falsely defends his mistreatment of his wife. In India, the term “marital rape,” which describes an unconsented sexual conduct between married couples, continues to be one of the most divisive legal and social issues. The continued fight for gender equality and justice is hampered by the fact that marital rape is still not illegal in India, despite major improvements in women’s rights and safeguards around the world.
Despite the fact that marital rape is illegal in many nations, India still faces social, cultural, and legal obstacles to effectively combating this problem. The issue is made worse by the fact that marital rape is not illegal in India because of an exclusion in Section 63 of the Bhartiya Nyaya Sanhita (BNS), which does not include marital rape in its definition of rape. This article explores the legal, social, and statistical viewpoints on marital rape in India, examining the contentious nature of the crime, the data that is currently available, and notable incidents that have raised awareness of it.
GLOBAL LEGAL FRAMEWORK
Marital rape has been made a crime in a number of nations, while enforcement and recognition variations exist:
United States
All 50 states made marital rape a crime by 1993, although many continued to exempt or lessen the penalty for rape that occurs within a marriage.
United Kingdom
In 1991, the landmark R. V. R. judgment eliminated the marital rape exclusions, acknowledging that marriage does not constitute lifelong consent to sexual relations.
New Zealand
Since 1985, marital rape has been considered a crime, and laws ensure that a punishment cannot be reduced because of a person’s marital status.
Mexico
Domestic abuse, which includes marital rape, has a maximum 16-year prison sentence.
Sri Lanka
Because marital rape is only acknowledged in cases of judicial separation, there is a need for more extensive legislative reform.
Despite advancements on a global scale, many nations, including India, still lag behind in making marital rape a crime.
POSITION IN INDIA
The legal system in India does not consider marital rape to be a crime. As long as the wife is at least 15 years old, non-consensual sexual relations between a man and his spouse are expressly excluded from the definition of rape under Section 63 of the BNS.
Judicial Ambiguity
Although rape has been recognized by the Supreme Court as a violation of human rights in Bodhisattwa Gautam v. Subhra Chakraborty, marital rape has not been given the same recognition.
Inconsistent Legal Provisions
Sexual violence in marriage is not addressed by laws like the Protection of Women from Domestic Violence Act, 2005, which only addresses physical abuse. Furthermore, marital rape is exempt from the Child Marriage Restriction Act if the victim is over 15, but sexual relations with a wife under the age of 18 are criminalized.
Advocacy for Change
The National Commission for Women (NCW) and women’s organizations have long called for the elimination of Section 375’s of IPC (63 of BNS), marital rape exemption. Legislative reform is still elusive despite an increase in public discussion.
Justice Verma Committee Report (2013)
The Justice Verma Committee was set up in response to the 2012 Delhi gang rape incident to suggest criminal law amendments that would expedite trials and strengthen punishments for those charged with sexual assault against women. The Committee’s findings, which included important observations about marital rape, were presented on January 23, 2013.
Nowadays, the Bhartiya Nyaya Sanhita (BNS) distinguishes between rape that takes place outside of marriage and rape that takes place inside. Even though the BNS forbids having sex without consent, there is a clause that shields husbands from prosecution for having sex with their wives against their will. With the argument that marriage shouldn’t be interpreted as a general consent to sexual activity, the Committee suggested doing away with this exemption.
Therefore, the nature of the victim-accused relationship should not be taken into consideration when determining whether consent was given for a sexual act.
The Committee’s position was significantly affected by decisions made by different international courts. It cited the C.R. v. UK Case from the European Commission of Human Rights, which upheld the principle that a rapist’s identity as an offender is unaffected by his relationship with the victim. The extensive 630-page report vehemently denounced the current mindset on this issue. In order to make marital rape a crime, a social worker petitioned the Delhi High Court in 2017. The petitioner contended that the existing clause infringes upon a woman’s equality and dignity. The court, however, refused to get involved, arguing that since it is a question of legislative policy, Parliament should discuss it.This decision highlighted the reluctance of India’s legal system to address the issue directly.
Additionally, a bench of the Supreme Court of India maintained the exception in Section 375 IPC in 2022, contending that marital rape is not illegal as long as the victim is older than 15.
Women’s rights advocates strongly criticized the decision, claiming that it encourages violence and abuse against women in marriage. The Court emphasized the necessity of parliamentary intervention and recommended that such issues be resolved by amending the law.
High-Profile Cases and Legal Precedents
In India, marital rape needs to be addressed immediately, as evidenced by a number of high-profile cases. The problem of marital sexual violence was brought to light in 2013 by the case of R v. State of Haryana. A woman who was repeatedly sexually assaulted by her husband was at the center of the case. The court acknowledged the abuse and emphasized that marital status should not be a shield for sexual violence when it decided in favor of the woman.
Despite its significance, the ruling had no effect on changes to the law regarding marital rape.
The Delhi High Court heard the case of a woman whose husband had repeatedly sexually assaulted her in 2016. According to the court, consent is essential in all sexual relationships and shouldn’t be disregarded just because a couple is married. Although the legal framework remained unchanged, the court’s comments were viewed as a step forward in acknowledging marital rape as a serious crime.
Another noteworthy instance occurred in 2021 when a Keralan woman accused her husband of marital rape. The woman claimed that for a long time, her husband had forced her to engage in sexual activity against her will. After ruling in her favor, the Kerala High Court requested that the police file a rape case. Although it is still the exception rather than the rule, this was one of the few times that the judiciary specifically acknowledged marital rape as a crime.
CONCLUSION
Due to societal, cultural, and legal obstacles, marital rape in India is still a highly contentious and unsolved problem. Despite the fact that statistics and cases demonstrate how common sexual violence is in marriage, abusers continue to operate with impunity because marital rape is not legally recognized. The legal system must change to address this serious problem, and society as a whole must change to acknowledge women’s fundamental right to be free from sexual violence in marriage. India can only make meaningful progress in eradicating marital rape and guaranteeing justice for women by implementing comprehensive legal reforms, educating the public, and providing support to victims.
FAQS
What is marital rape?
The term “marital rape” describes when a spouse engages in non-consensual sexual activity. It violates a woman’s fundamental rights and is a type of domestic violence.
Is marital rape a crime in India?
No, Indian law does not currently consider marital rape a crime, unless the wife is under 15 or has a judicial separation.
Why is criminalizing marital rape important?
Criminalization complies with international human rights norms, protects women’s right to consent, and discourages abusive behavior.
Is marital rape defined in BNS?
No, BNS’s Section 63 only defines Rape. There’s no definition provided for marital rape under the BNS.
