From Marital Privilege To Constitutional Personhood: A Transformative Critique Of The Marital Rape Exemption In India

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Anwesha Atul, Christ (Deemed to be) University, Central Campus, Bangalore

ABSTRACT

Criminalization of marital rape has become a legal and constitutional issue of concern in the modern world of gender justice especially in regard to the current legislative stagnation, judicial review, and the global requirements of human rights that seem to focus on consent, dignity, and bodily autonomy in intimate relations. The changing normative order notwithstanding, in a number of jurisdictions criminal law still overlooks marital rape, and this shows a lack of correspondence between constitutional morality and patriarchal ideas of marriage. The main issue being discussed is the fact that sexual violence in marriage remains a hidden issue legally and that institution of marriage is given precedence over the human right. The issue considered is whether the given exemption can be constitutionally and normatively justified, and what the consequences of this exemption are in terms of equality, autonomy, and access to justice. The primary goal and objective of the research is to critically evaluate legal grounds of immunity to marital rape and identify the need to criminalize it according to the rights-based framework. The study uses the doctrinal and comparative research methodology to examine statutory provisions, constitutional jurisprudence, and international human rights instruments and also perceives the gaps in existing literature that inadequately explores substantive equality and misuse discourses. The results show that the exemption is based on the outdated common law doctrines, it is not constitutionally justified, and cannot be justified by the comparative evidence proving that criminalization does not weaken the marriage or increases the misuse beyond the current criminal law issues. The paper can help in the reformulation of marital rape as a gender justice concern of the law by offering a constitutional and human rights model that opposes the traditional family-centered analyses and provides the normative ground through which the legislative intervention, the judicial interpretation, and the policy discussions regarding sexual violence in marriage can be restructured.

Keywords: Constitutional Morality, Consent, Gender Justice, Marital Rape, Substantive Equality.

452. FROM MARITAL PRIVILEGE TO CONSTITUTIONAL PERSONHOOD- A TRANSFORMATIVE CRITIQUE OF THE

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