Decriminalizing Marital Rape: A Step Towards Justice
and Gender Equality
Introduction:
Marital rape, the act of non-consensual intercourse by a spouse, remains a
contentious issue in legal and social discourse. While many countries, like
Chile, Colombia, and South Africa have criminalized it, India continues to
exempt husbands from prosecution under the Bharatiya Nyaya Sanhita,2023
(BNS), formerly Indian Penal Code,1860 (IPC).
Understanding Marital Rape and Its Legal Status:
Marital rape is a grave violation of bodily autonomy and human rights. In India,
Section 63 of the BNS (Section 375 of IPC) defines rape but provides an
exception under Exception 2, stating that sexual intercourse or sexual acts by a
man with his own wife, the wife not being under eighteen years of age, is not
rape. This legal provision essentially denies married women the right to bodily
integrity and consent within marriage.
Globally, over 100 countries, including the United States, United Kingdom, and
South Africa, have recognized and criminalized marital rape. However, India
lags behind due to socio-cultural norms and legal resistance. The persistence of
such an exception stems from the colonial-era mindset, where women were
considered the property of their husbands, a notion that contradicts modern
principles of gender equality and human rights.
Historical and Cultural Context:
The historical foundation of marital rape laws in India can be traced back to the
British era. The exception for marital rape was embedded in Indian law based
on the belief that marriage creates an irrevocable contract of sexual availability.
The concept of wife being a husband’s property was deeply ingrained in
patriarchal traditions, and despite social progress, this notion still persists in
certain conservative sections of society.
Religious and cultural beliefs also play a role in shaping public perception.
Many traditional schools of thought uphold the idea that marriage grants
automatic consent, making it difficult for lawmakers to introduce progressive
changes. However, cultural practices must evolve with time, aligning with
constitutional values of dignity, equality, and personal liberty.
Arguments Against Criminalizing Marital Rape:
1. Marriage Implies Consent:
The traditional understanding of marriage in India is that it implies
perpetual consent to sexual relations.
2. Misuse of Law:
Some argue that criminalizing marital rape could lead to false accusations
and harassment of husbands.
3. Undermining the Institution of Marriage:
Critics believe that recognizing marital rape as a crime would erode the
sanctity of marriage and increase divorce rates.
4. Alternative Legal Remedies Exist:
Some suggest that provisions under the Protection of Women from
Domestic Violence Act (PWDVA) and Section 85 of the BNS (Husband
or relative of husband of a woman subjecting her to cruelty) provide
sufficient protection.
5. Family and Social Disruptions:
Many believe that criminalizing marital rape will lead to increased
domestic conflicts and breakdown of families, which could negatively
impact children and extended family structures.
Counterarguments: Why Criminalization is Necessary:
1. Consent is Fundamental:
Consent is the cornerstone of any sexual relationship. Marriage does not
equate to irrevocable consent. Every individual has a right to autonomy
and dignity, which should not be compromised due to marital status.
2. Human Rights Violation:
Denying legal protection to married women violates Fundamental Rights
under Article 14 (equality), 19 (freedom), and 21 (right to life and
dignity) of the Indian Constitution. The exception to marital rape in
Section 63 of BNS contradicts these constitutional guarantees.
3. Global Legal Standards:
India, as a signatory to international conventions like the Convention on
the Elimination of All Forms of Discrimination Against Women
(CEDAW), must align its laws with global human rights standards. Many
developed nations criminalized marital rape decades ago, recognizing it
as a severe form of domestic violence.
4. Judicial Observations:
The Delhi High Court and various committees have repeatedly
recommended the removal of the marital rape exception. In recent years,
Supreme Court has emphasized gender equality and personal liberty,
signaling a need for progressive reforms.
5. Psychological and Physical Impact on Victims:
Survivors of marital rape suffer severe emotional trauma, loss of self-
esteem, depression, and even suicidal tendencies. The law must protect
such victims rather than shield perpetrators under the grab of marriage.
Important Case Laws on Marital Rape in India:
1. Independent Thought v. Union of India (2017):
The Supreme Court ruled that sexual intercourse with a minor wife is
rape, even if the marriage is legally recognized. This judgment was a
significant step in recognizing the importance of consent in marital
relationships.
2. RIT Foundation v. Union of India (2022):
This case challenges the constitutionality of Exception 2 of Section 63 of
BNS. The petition argued that marital rape should be criminalized to
ensure equality and protection for women.
In the Delhi High Court case of RIT Foundation v. Union of India, a split
verdict emerged regarding the marital rape exception, with one judge
finding it unconstitutional and the other upholding it, leading to an appeal
to the Supreme Court.
The Way Forward: Legal and Social Reforms:
1. Amending the BNS:
The exception in Section 63 of BNS should be repealed, making marital
rape an offence punishable by law.
2. Comprehensive Legal Framework:
Protection should extend beyond criminalization to include rehabilitation,
counseling, and support for the victims.
3. Public Awareness and Sensitization:
Education campaigns can help dismantle myths surrounding marital rape
and promote the concept of consent.
4. Judicial and Law Enforcement Training:
Sensitizing judges, police, and legal professionals to handle marital rape
cases effectively and empathetically.
Conclusion:
Criminalizing marital rape is not an attack on the institution of marriage but a
necessary step towards justice, equality and human dignity. The legal system
must recognize that consent cannot be presumed within marriage, and every
individual deserves protection from sexual violence, regardless of their marital
status. As India progresses socially and legally, it is imperative to ensure that
marital rape is recognized and addressed with the seriousness it deserves.
References:
1. The Bharatiya Nyaya Sanhita, 2023, Section 63.
2. Indian Penal Code, 1860, Section 375.
3. Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW), United Nations.
4. Supreme Court of India and Delhi High Court judgments on marital rape.
5. Independent Thought v. Union of India (2017).
6. RIT Foundation v. Union of India (2022).
