Marital Rape And The Criminal Jurisprudence Of India: A Critical Analysis
- IJLLR Journal
- Mar 16
- 2 min read
Yash Shrivastava, BBA. LLB. (Hons.), Siksha ‘O’ Anusandhan (Deemed to be University), Bhubaneswar.
ABSTRACT
In the Indian socio-legal world, marriage has traditionally been considered to be a sacrosanct institution granting the husband an unconditioned and life- long possession of the body of his wife. It is also a very strong patriarchal assumption that has been used as the ideological underpinning of the marital rape exception, which is not a criminal offence on the part of a husband who has forcibly penetrated his wife. She welcomed the new Indian criminal law as a groundbreaking change in the Indian criminal law by replacing the Indian Penal Code of 1860 and the new law was called Bharatiya Nyaya Sanhita, 2023. Nevertheless, the new code, in one of its greatest failures, not only kept the marital rape exception but made it continue to hold an archaic and constitutionally questionable legal stance. Section 63 of the BNS which defines rape still excludes the non-consentual sexual intercourse between a husband and his wife who is above eighteen years old. The paper is a critical analysis of the theoretical foundation of this exception, its origins in the common law, and an analysis of the exception in the context of constitutional morality, feminist jurisprudence, and international human rights norms. It also scouts across pertinent Indian judicial precedents as well as comparative jurisdictions, question the perennial role of the State in naturalising sexual violence in marital relations. As the paper says, the omission of marital rape by the Bharatiya Nyaya Sanhita is not a legislative omission, but rather an acceptance of retrogressive social convention which cannot be expressed in the constitution and is immoral.
Keywords: Conjugal Rights, Consent, Constitutional Morality, Feminist Jurisprudence, Sexual Autonomy.
