Ensuring Protection Against Marital Rape: A State Obligation Under CEDAW
- IJLLR Journal
- Sep 22
- 2 min read
Shraddha Sunil, LLM, Centre for Post Graduate Legal Studies, Jindal Global Law School
CHAPTER 1
1. INTRODUCTION
Offences against women have taken many forms and it had added to the already existent problems that women face. Indian Constitution promises all its citizens right to life, dignity, and equality. Tenacity in the exclusion of marital rape from the erstwhile Section 375 of the Indian Penal Code (IPC) and section 63 of the current Bharatiya Nyaya Sanhita is an uncivilized contrast to such fundamental assurances and is a glaring lacuna in extending sexual autonomy and bodily autonomy to women. Despite India being a signatory to Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), its criminal law has not brought its domestic criminal law in line with its treaty obligation. CEDAW, the 1979 United Nations General Assembly (UNGA) decision and Indian ratification thereof in 1993, obligates state parties to eradicate all types of discrimination against women both in the public and private domains, within the family, and in the institution of marriage. The perpetuation of constitutional immunity granted to marital non- consensual sex thus constitutes at least an internal constitutional flaw and more to a horrific breach of India’s external obligations under CEDAW.
This dissertation examines whether India has remained in compliance with its CEDAW obligations and analyses the legal and socio- political explanations of deviation if any. It further elucidates how the non- criminalization of marital rape mirrors general non- compliance with global human rights norms, largely jeopardizing women’s rights, liberty, and gender equality in India. The exemption granted to husbands under Exception 2 of section 375 IPC and now section 63 of BNS de facto legitimates marital rape and patriarchal and time- worn legacy of coverture, a medieval English Legislation that introduced the life of law for the woman in the husband on marriage. British rule in India included of a “civilizing mission” when the British rulers sought to initiate reforms in India, by projecting themselves to be the harbingers of progress and modernity. The defense of marital was attempted in Gorakhnath Sharma v. State of Chhattisgarh, where a man forcibly put his penis into the anus of his wife and inflicted rectum perforation and death later. In spite of a genuine deathbed confession and supporting post- mortem reports describing peritonitis due to lacerations of the anus, the court relied on the exception of rape under marriage under Section 375 IPC and inexplicably fell back on section 377 IPC – a criminal offense in itself of which there is no exception of marriage. This judicial overreach was opposite to settled legal stands, including Gujarat and Karnataka High court cases in upholding prosecution under section 377 of oral and anal rape during the course of marriage on the grounds that the factum of marriage cannot be in every situation in sexual assault.
