Criminalisation Of Marital Rape In India
- IJLLR Journal
- 42 minutes ago
- 2 min read
Ojashvi Verma, City Academy Law College, Chinhat, Lucknow, Uttar Pradesh
ABSTRACT
Marriage is considered a sacrosanct institution with profound obligations for both partners, but this sacredness is challenged by the reality of marital rape, which is a crime of sexual violence within a marriage. India is one of the nations where marital rape is still impervious to criminal prosecution because it is one of the most neglected areas of criminal law in the country. Exception 2 to section 63 of Bharatiya Nyaya Sanhita, 2023, which states that “sexual intercourse by a man with his own wife is not rape if the wife is not being under eighteen years of age”, is the main debatable issue. While Indian law has made strides in expanding the definition of sexual assault, the legal immunity granted to husbands remain a glaring lacuna. This exception contradicts the principles of bodily autonomy and equality enshrined in the constitution. This paper analyzes the constitutional validity of this exception through the lens of Article 14 (Right to equality), Article 19 (Right to freedom) and Article 21 (Right to Life and Dignity). The Supreme Court and several High Courts in a catena of cases have ecognized that marital rape undermines the dignity of a woman. By reviewing recent conflicting judgment from Delhi High Court and the pending proceedings in the Supreme Court, the study argues that the doctrine of “implied consent” is a colonial relic that contradicts the contemporary legal understanding of bodily autonomy. As per National Family Health Survey, 6% of ever-married women in India, aged 18-49, reported having experienced spousal sexual violence. The Consent is not inferred by marriage and elimination of Exception is not merely a statutory necessity but a constitutional mandate to ensure gender justice.
Keywords: Marital rape, marriage, non-consensual, spousal violence, violence, sexual intercourse, criminalizing marital rape, marital rape exception, consent
