Marital Rape In India: A Socio-Legal Analysis Of The Marital Rape Exception And Constitutional Debate
Shivani Deval & Kasturi Kharvad, B.A. LL.B., Thakur Ramnarayan College of Law
ABSTRACT
Marital rape refers to sexual intercourse or sexual acts imposed by one spouse upon the other without consent. In India, this issue remains an important subject of legal and constitutional debate because the Bharatiya Nyaya Sanhita, 2023 (BNS) retains an exception to the offence of rape for sexual acts committed by a man with his own wife, provided that the wife is not below eighteen years of age. This raises important questions about women's bodily autonomy, dignity, equality and the right to personal liberty. This research paper examines the legal position of marital rape in India, the historical development of the marital rape exception and the limitations of the existing legal remedies. It analyses the relevant provisions of the BNS, the Protection of Women from Domestic Violence Act, 2005, and other applicable laws. It also examines important judicial decisions, including Independent Thought v. Union of India and RIT Foundation v. Union of India, to understand the judicial approach towards the marital rape exception and its constitutional implications.
The study also considers the psychological and social consequences of marital rape, the difficulties survivors face when reporting abuse and the legal approaches adopted by countries that have criminalised marital rape. Particular attention is given to the constitutional principles of equality under Article 14 and life and personal liberty under Article 21 of the Constitution of India. The paper adopts a doctrinal research methodology based on legislation, judicial decisions, committee reports, research articles and other secondary sources. It emphasises the need to critically reconsider the marital rape exception, strengthen existing legal remedies, improve survivor support systems and promote awareness about consent within marriage. In conclusion, this paper aims to highlight that marital status should not prevent meaningful consideration of a person's right to bodily autonomy, dignity and legal protection.
Keywords: Marital rape, consent, Bharatiya Nyaya Sanhita, Article 14, Article 21, bodily autonomy, domestic violence, constitutional rights.
