Consent Within Marriage: Rethinking Exception 2 To Section 63 BNS
- IJLLR Journal
- 51 minutes ago
- 2 min read
Kanak Patware, Amity Law School, Noida, Uttar Pradesh
ABSTRACT
Rape is one of the most serious and violent crimes. It affects the victims both physically and mentally. This paper aims to examine the validity of Exception 2 of Section 63 of Bhartiya Nyaya Sanhita, 2023 which excludes sexual intercourse or sexual act by husband with his own wife not below eighteen years of age from the definition of Rape. This exception is based on the principle that wife is the property of husband and after marriage the spouses become one entity which leads to conversion of sexual access into conjugal entitlement. This paper argues that the exemption is contrary to constitutional jurisprudence, human rights and bodily autonomy. This paper beings analysis by tracing the colonial and patriarchal roots of exception to marital rape, connecting it with outdated notion of property and marital unity. The paper further dives into the concept of consent where it highlights the difference between informed, voluntary consent versus submission obtained via coercion and structural dependency. This paper reflect upon the inconsistency lying in recognising bodily autonomy of a women in every other sphere of law while denying it within marriage. The paper further puts exception 2 of Section 63 under constitutional scrutiny and express its inconsistency with Article 14, 15 and 21. The Sexual autonomy based on gender equality, autonomy in making decision and life free from violence questions the assumption of extinguishment of sexual autonomy within marriage. International perspective revealed that many countries have repealed marital rape immunities and declared them as discriminatory to fundamental human rights. The biggest reason for not uncovering the blanket immunity of marital rape is the fear of misuse, false accusations. This paper argues that this can handled by way of procedural safeguards instead of maintaining blanket exemptions. Such criminal exemption undermine effort towards gender justice and normalises sexual atrocities and violence. The whole idea is that the exemption tends to undermine the sexual autonomy of a wife in order to achieve stability in marriage. Therefore it is important to reimagine consent within marriage not only to fit it in within the legal sphere but also to affirm the fundamental principle of dignity and bodily integrity which can’t be surrendered just because a women entered into marriage.
Keywords: Marital rape, consent, sexual autonomy, bodily integrity, patriarchy, constitutional principles, autonomy,
