Beyond The Threshold: The Legal Invisibility Of Sexual Violence Within Marriage
Kalyani Gangakhedkar & Kenisha Anklesaria, B.B.A LL.B., Institute of Law, Nirma University
ABSTRACT
India’s criminal jurisprudence has witnessed several significant reforms over the past decade, albeit Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 retaining spousal immunity, legally exempting forced sexual intercourse by a husband from the definition of rape. The legislative anomaly is a blatant case of gender inequality that denies a victim a voice and fails to recognize her pain through any form of vocabulary or legal redressal. This article highlights the state’s justification for marital rape using the “privacy sanctity” defence.
Additionally, this article focuses on the social and economic dependence of the victims along with the societal perception of the "ideal wife" that fails to deter crime and forensic evidence through the civil remedy of Protection of Women from Domestic Violence Act, 2005 and other provisions such as the restitution of conjugal rights. In the end, the victims are stuck in an environment where they have no option but to live between continuous violation and total destitution.
To achieve the legal parity, it requires dismantling marital immunity, affirming that marriage is never a perpetual surrendering of consent, all the while ensuring that a woman’s bodily integrity remains protected regardless of her marital status.
