Incomplete Reform In The BNS: Exception To Marital Rape
- IJLLR Journal
- 5 minutes ago
- 2 min read
Ritzy Jalan, Jindal Global Law School
The Bhartiya Nyaya Sanhita 2023 (the BNS), aimed to eradicate colonial evils of criminal law in India. Macaulay’s Indian Penal Code was criticized for being unevolved, needed constant amendments to accommodate “gender neutrality” and to decolonize laws by narrowing the scope of sedition laws and mob-lynching. Decolonization in criminal law refers to the dismantling of institutions and practises influenced by the colonial period to remove power structures; moving towards a more equitable order of society. However, BNS retained the exception to rape by the veil of marriage under Exception 2 of Section 63 (formerly under Section 375 of the IPC, for the purposes of this article, may be referred to Section 63, BNS). This is in direct contradiction of both the promises of gender neutral laws through heavy patriarchal biases and of decolonizing the Indian Penal Code through keeping the wife’s role in a marriage unchanged.
Section 63 under the BNS recognises rape as one of the most grave violations of bodily autonomy and sexual agency, considered a barbaric crime by every country, including India. Yet, when the said act is committed by a husband against the will or without the consent of his wife, the law withdraws the label of rape and replaces it with exceptions, and provides civil remedies under Domestic Violence Act. Legislative intent is not only of stark importance due to face value itself; but mainly as the courts focus on the intention and purpose of the Legislature behind the making of the law to interpret it fairly. The next step taken by the Legislature must be consistent with the legislative intent of enacting the BNS. Towards a truly post-colonial criminal law beginning by dismantling colonial patriarchy embedded in the very architecture of rape law. This article aims to highlight the gap between the Legislature enacted (the BNS) and the legislative intent for the same in context of the marital Rape exception.
