Between Autonomy And Weaponization: The Constitutional Paradox Of The Marital Rape Exception Under India’s Bharatiya Nyaya Sanhita (2023)
- IJLLR Journal
- 3 hours ago
- 2 min read
Utkarsh Raj, B.A.LL.B., Lloyd Law College, Greater Noida, Prachi Sahu, Department of Humanities (Grade 12), Vedic International School
ABSTRACT
This paper interrogates the constitutional validity of the marital rape exception preserved under Section 63, Exception 2 of India’s Bharatiya Nyaya Sanhita, 2023 (BNS), the statute that took effect on July 1, 2024 and supplanted the colonial-era Indian Penal Code of 1860. Even as lawmakers claimed to be purging Indian criminal law of its colonial residue, they chose to retain a clause shielding a husband from prosecution for forcing sexual intercourse on his wife a carryover of the seventeenth-century English coverture doctrine.
The central argument advanced here is that Exception 2 cannot survive constitutional scrutiny: it offends a married woman’s guarantee of equality and non-discrimination under Article 14, and infringes her entitlement to bodily autonomy, dignity, and privacy under Article 21, rights the Supreme Court has authoritatively construed in Justice K.S. Puttaswamy (Retd.) v. Union of India. Yet this paper does not treat that case in a vacuum. India’s well-documented history of matrimonial provisions being turned into instruments of harassment most notably the recurring misuse of the dowry- cruelty clause in Section 498A IPC, now Section 85 BNS, during bitter marital disputes raises a jurisprudential worry that deserves engagement, not dismissal as reflexive patriarchal pushback.
Building on comparative constitutional experience, India’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the split decision handed down by the Delhi High Court in RIT Foundation v. Union of India (2022), and figures drawn from the National Family Health Survey-5 (2019–21), this paper sets out a calibrated legislative model: one that makes marital rape a criminal offence while building in firm procedural checks against malicious complaints. Its thesis is twofold constitutional fidelity demands criminalization, and prudent governance demands that the criminalization be carefully engineered.
Keywords: Bharatiya Nyaya Sanhita; marital rape exception; bodily autonomy; Article 14; Article 21; Section 498A; evidentiary safeguards; CEDAW; constitutional law; India.
