The Marital Rape Exception Under The Bharatiya Nyaya Sanhita: Constitutional Validity And The Need For Reform
Priya Tiwari, Bharati Vidyapeeth Deemed University, Pune Institute of Management and Research, Dept. of Law, New Delhi
Anshuli Singh, Bharati Vidyapeeth Deemed University, Pune Institute of Management and Research, Dept. of Law, New Delhi
ABSTRACT
The aspects of rape, as defined in Section 63, Bharatiya Nyaya Sanhita, 2023 (BNS), are consent-centred, however, an adult wife can be seen to be taken out of the protection of the definition with regards to an alleged rapist just being her husband under Exception 2, of the section. This article challenges the exclusion from the perspectives of Article 14, 15, 19 and 21, principles of constitutional morality and transformative constitutionalism and international commitments of the State of India. It resorts to the debatable question of the explanation of the scheme of the statute in the light of the doctrine, divided decision of the Delhi High Court, material drawn from a different source and bin ready reform models. The analysis holds that consent can only be inferred from marriage and there must be a factual context to the allegation which goes beyond consent and to the harm of forced penetration. Offences of cruelty or hurt, along with protections afforded by domestic-violence laws, are not afforded the same criminal stature and thus, these do not address the equality concern. Careful procedure is all that is required for difficult questions of proof, misuse and institutional design; there is no need for immunity as such. The better answer is to eliminate Exception 2; to inculpate separated spouses under the general guise of rape; and to put in place a survivor protection rule with the ordinary promises of a fair proceeding based on a relationship neutral rule of consent.
Keywords: Bharatiya Nyaya Sanhita; marital rape; consent; constitutional equality; bodily autonomy; criminal law reform.
