“In India, marital rape exists de facto but not de jure.”
Introduction
Marriage, traditionally regarded as a sacred institution, has long served as a domain shielded from legal intervention—a refuge for affection and familial connections. But lurking inside the boundaries of this sanctity is a difficult topic that has long remained disguised in societal standards and legal obscurity: marital rape. Despite the global awakening towards treating marital rape as a crime, India ranks as one of the few countries that do not criminalise such violence. In a marriage, both spouses take up moral obligations to protect each other and live together with dignity and respect. But when these vows in their entirety are neglected by the other spouse and the wife is forced to indulge with him in sexual acts against her wishes and consent, such an act is not only an immoral one but should also be treated as an act inherently illegal. This exception to the rule and the consequent coupling of a male with the husband's position through marriage does not give him the power to compel his wife to do something against her will. This highlights concerns over women's rights, consent, and legal equality in marriage.
The Evolution of Marital Rape
These antiquated notions of a wife's subservient role in the home and legislation drafted at the time of British colonial rule form the basis of the BNS's and the IPC's earlier decisions on marital rape. Spousal rape was largely non-existent during British rule when women were considered to be the husband's property. It is a relic of that era that excludes this exception.
Influenced by the contention that by marriage, “the wife gives implied consent for her husband to exercise a profligate use of marital rights,” British legislators who drafted the Indian Penal Code in the 1860s formed the marital rape exception. This outmoded view denied women the freedom to refuse sexual relations with their husbands and imposed upon them a common notion—the fact that a wife's permission doesn't matter when it comes to sexual relations within marriage. This principle was explicitly stated in Section 375 of the Indian Penal Code when enacted in 1860 and has persisted since then.
In Sakshi v. Union of India, the Supreme Court recognised lacunae within the existing regime of marital offences that called for amendments in the form of legislation. However, the 172nd Law Commission report rejected the criminalisation of marital rape, citing potential overreaching by the state in conjugal relationships. The phase of major change came in 2013 when the Justice Verma committee powerfully recommended the deletion of the marital rape exception and criminalisation of marital rape.
Section 63 of BNS defines rape but retains a controversial exception that forced sexual intercourse between a husband and his adult wife above 18 years of age is not included in this definition. Human rights campaigning, legal authorities, and the greatest portion of the Indian population criticise this clause, similar to the IPC exemption established centuries ago, as it promotes state-sanctioned sexual violation and collapses principles of consent and bodily integrity.
Ethics vs Lawfulness
The conflict between moral righteousness and legality in the case of marital rape exemplifies the complexities involved in making laws involving private relationships. We are no longer tolerating the old system, which was based on the premise that a wife should submit to her husband's sexual desires at all times. This results in many people being more concerned with human rights and dignity issues. The right to individual privacy, particularly regarding bodily autonomy and protection against exploitation, is now considered important, even within the constraints of marriage.
Recognising that all women, irrespective of marital status, have the inherent right to manage their bodies, is of the utmost importance and should be codified in legislation. According to Catherine Mackinnon, the private sphere exists not to safeguard women's privacy but men's—the creation of a separate, enclosed space for home matters serves only to perpetuate men's unbridled dominance.
Natural law theory argues that laws should mirror changing societal values; as such, the existing law should be amended to criminalise marital rape as it is morally impermissible.
The Criticism: Disregard for Human Dignity and Authorisation
The core argument presented against BNS's marital rape exception is that it violates the core tenets of consent and the right to bodily integrity that underlie the definition of rape. This law takes away her autonomy and her ability to give consent through the allowance of forcible sexual relations in the marriage, reducing her to being nothing more than an available sexual resource for her husband.
This loophole continues to condone state-endorsed domestic violence and denies justice to many women who have been raped, painting marriage as a license to rape. This dangerous message demeans women's human rights and dignity by suggesting that marriage removes their autonomy and consent over their bodies.
Moreover, victims face more difficulty in being able to identify and report instances of abuse because this exception makes marital rape seem less unacceptable. Instead, it makes shame and silence normalised because women are expected to keep silent about sexual assault within marriage; therefore, the psychological effects and suffering experienced by a victim grow significantly over time.
The Discourse Persists: Justifications for Upholding the Exception
Some reform supporters argue that BNS should retain the provision for marital rape despite much opposition and appeals to remove it. Among the complaints mentioned, they concern possible abuse and phoney accusations more explicitly within the frameworks of marital conflicts or as an act of retaliation.
Proponents of the exception claim that if allowed into the civil domain, many “unwed couples’’ would bring into the law courts matters that ought to be handled out of court to get an edge in a divorce suit, thus promoting simple, unsubstantiated litigation. Such recourse would endanger the sanctity of the marriage and disturb the family.
The need for strong legal protections and evidence requirements must guard against abuses and false accusations, which preclude an argument; marital rape offences should be subjected to the same balance seen with other criminal offences, such as severe fines for false reports and strict proof requirements.
As much as I appreciate the spirit and the suggested logic of the case in favour of the law that prohibits the marriage of a man to a girl below the age of eighteen, I find the argument that the marriage of a woman automatically implies her consent to sexual relations logically fallacious to the extent that it offends the very essence of matrimonial relations, whether conceived as sacred covenants or as business deals.
As enshrined in independent thought judgement, the understanding of Section 375 gives the loudest voice to the fact that any sexual intercourse with one’s spouse, who is over 18 years old, is in no way deemed rape, and thus, the question of consent cannot arise at all before the court.
Justice C. Harishankar pointed out while referring to exception 2 that the wife's assent was not necessary and upheld the validity of both classifications—married or unmarried.
This reasoning forgets that marriage never implies agreement to injury or violence. On the contrary, the law disapproves of the concept that marriage lets one spouse hurt or assault the other. This opposes the core marital norms and legal foundation.
The Path Forward: Eliminating the Exception and Guaranteeing Justice
Marital rape affects not only the individuals concerned but also their families in a profound manner. The core foundation of trust in most marriages, based on mutual consent, respect, and affection, is shaken.
A lack of legal frameworks prohibits a woman from raising her voice since it would enable a stigma arising from being violated in her marriage. It is the worst form of violation, perpetuated by one spouse controlling the body of the other with the founding principles of patriarchy. The severe breach of trust can impact an entire family unit woefully and detrimentally.
It is now abundantly evident that the drafted code does not fully prosecute marital rape and makes Indian laws fall in line with international human rights norms, given the debate over the BNS and this kind of sexual assault continues.
Addressing the complexities surrounding marital rape, especially within the context of potential legislation, requires an integrated approach that strikes a balance between safeguarding victims and guarding against malicious charges. Determining a precise legal meaning of marital rape is part of that approach. Of course, a person's being married does not imply their permission for something; it must be explicitly stated within this definition. If we define legal words, then we can ensure that the victims will feel assured of safety so they can come forward with such issues without the chance of being misunderstood or even being misconstrued at any procedure in court.
When dealing with issues and complaints of rape within marriage, definitions and standards should be in place. There is a need for law enforcers to have specific, standard procedures for gathering evidence. One of these processes is to train officers on how to handle sensitive situations with care and respect. It is essential that victims receive full support during the investigation, and forensic evidence should be applied first whenever possible. Victims can better deal with the terrifying experience of speaking out against accusations when they have this type of support system in place.
Enhancing measures for regulation is equally important in this case. Independent monitoring committees must be instituted over the investigation of marital rape cases so that such cases can be investigated without any biases or partialities. It would be able to give accountability in case management, keeping everyone's interest intact. It is also essential to initiate obligatory reporting mandates of the allegations to the police authorities, which would help to enhance accountability and ensure the proper gravity in handling such cases.
To safeguard the principles of gender equality, bodily autonomy, and consent, there have been increasing calls for the abolition of the marital rape exception by legal experts, activists, and supporters, arguing that the fact that a person is married should not exempt him from the legal consequences of rape or legalise the act of having intercourse without consent.
Preventive efforts, rather than reactive ones, are necessary to address the root causes of marital rape and the likelihood of false charges. Schools and communities should develop educational programs that are focused on the ideas of consent, healthy relationships, and proper communication skills. Campaigns aimed at teaching individuals how to recognise and respect the personal boundaries of one another would lead to fewer misunderstandings, which may eventually lead to accusations.
Counselling and mediation services can be provided to couples who are facing tough times, which can help them overcome their differences without allegations and physical violence. Legal guidance and support networks available in the community can be useful in establishing judgement-and repercussions-free zones where people can comfortably talk about their problems.
The way forward is filled with obstacles, but as of now, to keep the fundamental human rights of a woman intact in India, it is essential to fight for acknowledgement and legal action against marital rape.
By Ansh Priy Srivastava
Ansh Priy Srivastava is a dedicated second-year law student pursuing B.A.L.L.B(Hons) at Chanakya National Law University (CNLU), Patna. His academic interests span human rights advocacy, child rights, and women's rights, with a keen focus on legal awareness for all.
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