Aaryaman Khanna, O.P. Jindal Global University
ABSTRACT
India is among a rare breed of around 30 countries which have not criminalized non-consensual sex between spouses in marriage (popularly known as marital rape) as a form of violence. This has been a highly debated and controversial issue with many arguing for the urgent need to criminalize this horrendous form of abuse. Multiple writ and statutory leave (SLPs) petitions have been filed before courts to take down the statutory provisions that decriminalize this violence in India, however, no legitimate change has yet been proposed by either the legislative or the judiciary. On the contrary, recent tides show that both institutes would allow for the impugned laws to exist with little to no change as they serve as an essential safety net in the overarching web of Indian marital and criminal laws. The highly disputed provisions of the Indian Penal Code (IPC)1 discussed above are exception 2 of Section 375 which allegedly allows for, if not glorifies, rape in a matrimonial relationship; and Section 376B which provides for a significantly lower punishment of minimum 2 years (maximum 7) to a husband raping his wife, as compared to a stranger raping his wife who would be imprisoned for at least ten years. This paper aims to explore the constitutional validity of these two provisions given their contentious legal background and resurgence in the newly implemented Bharatiya Nyaya Sanhita Act.
