Criminalization Of Marital Rape In India: A Comparative Legal Study With The United Kingdom
- IJLLR Journal
- 8 hours ago
- 1 min read
Manish, B.A. LL.B., Amity Law School, Noida
ABSTRACT
The legality and constitutionality of the marital rape exemption in India is explored within contemporary notions of consent, dignity and equality. The marital rape exemption originated in the doctrine of marital immunity in English common law where within the institution of marriage, spouses were assumed to have given enthusiastic and permanent consent to share their bodies at any and all times. However, current day jurisprudence acknowledges that consent must be freely given, revocable, specific to the circumstances or the parties involved, etc., thereby making it difficult to at least justify the continued existence of the marital rape exemption. This article investigates the evolving notion of consent in the context of criminal law, assessing feminist legal analysis that effectively disrupts the public/private dichotomy by demonstrating that the marital exemption from criminal prosecution for rape perpetuates gender-based inequality. The article also discusses constitutional morality as contained in articles 14, 15 & 21 of the Constitution of India, specifically concerning the rights to dignity, bodily integrity and the right to personal liberty. The article also reviews international human rights norms and the legal groundwork for elimination of marital rape in other jurisdictions practiced under common law. Ultimately, the article concludes that marital rape is inconsistent with the constitutional principles; therefore, it must be considered in terms of personal autonomy and equality.
Keywords: Marital rape; consent; feminist jurisprudence; constitutional morality; bodily integrity; human rights; India.
