Author:Unnati Jain, Lloyd Law College
Abstract
In India, the concept of marital rape in not recognized legally but it is renounced in social sphere. Here, there is no legal action or stance that can be taken against any such cause as according to exception 2 of section 63 of Bhartiya Nyaya Sanhita, 2024 (BNS), any type of sexual intercourse by man with his wife, provided above 18 years of age is not rape. Though the act of marital rape is considered as a ground of getting a divorce. The article further will discuss all the aspects related to marital rape in India.
Introduction
In India, marriage is majorly considered as a sacred bon where both the spouses vow and share their lives together with mutual respect, responsibilities, duties and beliefs in each other. Though according to several laws and in-fact the constitution of India itself marriage is supposed to be conducted with free consent of both the spouses, provided that both must have attained legal age of marriage i.e. 18 years for girls while 21 years for boys. But, it has often been in notice that women endure great sufferings out of the marriage and one of the most horrific coercion faced by them is of marital rape as it does not provide protection to women even by law.
By marital rape one must understand that it talks specifically about non-consensual sexual intercourse by men (husband) with the women (wife), without the explicit consent of wife. India have laws to punish the individual for commencement of rape but, non supports the action of marital rape as law does not consider it as a criminal offense. Here, it is believed that marriage signifies a pre applied consent for having a sexual relationship with each other.
Marital rape in India
The concept of marital rape is not recognized in India at a large scale as it is largely socially believed to be a personal matter of the spouses. Here it is firmly believed that marriage given an implied consent for sexual intercourse between the spouses throughout their course of marriage. In modern times it has been stated that if the male and female are legally married to each other and the wife if above 18 years of age, the sexual intercourse between them is lawful and does not require any type of consent from the wife again and again. Thus, marking that marital rape is not a criminal offence under section 63 of the Bhartiya Nyaya Sanhita, 2024.
There are different types of law that protect women from any kind of abuse during the course of marriage, like that of The Protection of women from Domestic Violence Act (PWDVA), etc. Under the PWDVA it has been stated that any kind of domestic abuse on women is illegal and thus providing women with civil remedies but no criminal charges are entertained over the husband.
All of this signifies that in this society, rape by a stranger is punishable but rape by one’s own husband is not punishable under law.
The women who are facing such atrocities in their household suffer grievously from different health problems i.e. physical as well as psychological. There have been numerous surveys on this type of rape and it has been reported that the marital rape out of all the other kinds of rape is the most disturbing for women as unlike a rape by stranger this happens by one’s own husband, repeatedly. Thus, destroying the psychological health of women severely with anxiety or depression with many more. Other health problems like physical injuries in genital areas, chronic pain, forced pregnancies and even miscarriage at large scale is experienced by these women. The biggest problem with such acts is that no legal action is taken for providing aid to women.
In the case of Nimeshbhai Bharat Bhai Desai vs. The State of Gujarat, 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. The law must provide security to every woman (married or unmarried) to protect her corporal independence.
In the case of Anuja Kapur vs. Union of India Through Secretary, 2019, a PIL was filed by Anuja Kapur asking the Court to direct the Government of India to release some guidelines and laws on marital rape. But the bench of the Supreme Court headed by Justice SA Bobde and Justice BR Gavai refused the petition and said that the work related to the formulation of the laws is of the legislature and not the judiciary and the court is more involved with the interpretation of the law rather than drafting it.
United Nations on marital rape
On 25th June 2019, the UN urged nations to discontinue marital rape & dissolve legal lacunas. The house is amongst the most perilous spots for females, the United Nations said on 25th June 2019, as examination demonstrated just four out of ten nations condemn the conjugal assault. Twelve nations permit offenders to evade indictment by tying in a marital alliance with their victims, stated by UN Women their leader yearly “Progress of the World’s Women report”. Phumzile Mlambo-Ngcuka,an executive director of UN Women stated in its preface “We have seen incredible improvement in taking out oppression against females, in laws, anyway it’s not a mishap that family laws have been the steadiest to progress. The stunning inescapability of sexual partner viciousness implies that factually, house is amongst the most perilous spots for a woman to live.”
In the year 2017, almost 60% of women casualties of deliberate murder were slaughtered by relatives, a pace of 137 women are slaughtered every day, as per the report. Almost 1 of every 5 females aged 15 to 49 internationally experienced corporal or venereal maltreatment by a previous or present accomplice or companion in the earlier year, the report likewise found, portraying brutality towards females as “genuine and universal.”
Legal Jargon
Section 63 of BNS:
This section talks about the rape as a criminal offence in our new major criminal act i.e. Bhartiya Nyaya Sanhita (BNS).
Exception 2 of section 63 of BNS:
In this exception it has been defined that sexual intercourse (with our without consent) done by man with his legally wedded wife, provided that the wife is above 18 years of age is not rape.
Protection of women from Domestic Violence Act (PWDVA):
Civil law providing remedies for women suffering from domestic violence, including sexual abuse.
Article 14: Right to equality
This article states that, state shall not deny to any person equality before the law or equal protection of the laws within the territory of India. Here, the law is basically discriminating between a married and unmarried woman where a rape by stranger is considered punishable while rape by one’s own husband is not considered punishable. The real meaning of rape includes “forced sexual intercourse with a woman by a man without her consent”.
Article 21: Protection of life and liberty
This article states that, no person shall be denied of his life and personal liberty except according to the procedure established by law. This clause is very wide in terms of interpretation as the honorable Supreme Court of India has interpreted the article in various cases in various ways. Here, in the case of the “State of Karnataka vs. Krishnappa”, the Apex Court said that “sexual violence except being a barbaric act is an unlawful interference with the right to privacy and sanctity of a female”. And, also held that sexual intercourse without consent amounts to physical and sexual abuse. After that, in the Suchita Srivastava vs. Chandigarh Administration, the Supreme Court compared the right to choose alternatives related to sexual activity with that of right to personal liberty, dignity, and bodily integrity within the meaning of Article 21 of the Indian Constitution. The Apex Court in its most recent judgment has expressly acknowledged the right to make choices concerning intimate relations within Article 21 of the Indian Constitution. In the case of ‘Justice K.S. Puttaswamy (Retd.) vs. Union of India’, the Apex Court of India acknowledged ‘the right to privacy’ as a ‘fundamental right of all citizens under Article 21’ & adjudged that the right to privacy embraces “decisive privacy contemplated by an ability to build intimate decisions mainly comprising one’s sexual or reproducing nature and decisions regarding intimate relations.”
Conclusion
Marital rape is a gross violation of bodily autonomy, human dignity, and constitutional rights. The legal immunity enjoyed by husbands under the BNS sends a regressive message that consent within marriage is optional or unnecessary. The law must catch up with modern constitutional principles, feminist jurisprudence, and international human rights standards.
While concerns about misuse must be acknowledged, they should be addressed through procedural safeguards, not by withholding justice. It is imperative for India to enact clear and effective laws that criminalize marital rape, provide support to survivors, and work toward a society where marriage is based on equality, respect, and consent-not coercion.
FAQ’s
QUES 1. What is Marital rape?
ANS 1. Any type of sexual intercourse by man with his wife, without the consent of wife is known as marital rape.
QUES 2. What is the difference between rape and marital rape?
ANS 2. Rape is when any type of sexual violence or assault that has been experienced by women by men and it is punishable while marital rape is when the same assault has been experienced by the wife from her legally wedded husband and not punishable.
