The Persistence Of Patriarchy: A Critical Analysis Of The Marital Rape Exception In Section 63 Of The BNS
- IJLLR Journal
- 4 days ago
- 1 min read
Avika Vats, IILM University
Paras Yadav, IILM University
ABSTRACT
One concerning relic of patriarchal law is the Marital Rape Exception found in Section 63 of the Bharatiya Nyaya Sanhita. The clause undermines married women's fundamental dignity by treating marital status as a shield against accountability and absolving a husband of criminal responsibility for engaging in non-consensual sexual relations with his spouse. This paper argues that the exception is incompatible with the equality, non- discrimination, and personal liberty guaranteed by Articles 14, 15, and 21 of the Constitution. It gives institutional preservation precedence over individual rights and denies women agency over their own bodies.
The study investigates how the exception is based on antiquated ideas like implied consent and marital entitlement using a critical analytical approach that blends legal reasoning, sociocultural context, and feminist theory. According to the analysis, the division made between married and single women is illogical and does not pass the reasonableness and proportionality tests of the Constitution. Therefore, the continuation of this exception is a moral failing as well as a constitutional one.
The purpose of the paper is to examine the socio-legal ramifications of the Marital Rape Exclusion, critically evaluate the constitutional conflicts it contains, and trace the historical foundations of marital immunity. Additionally, it uses international and comparative viewpoints to show how international legal systems have eliminated these exceptions. To ensure gender neutrality and uphold justice within India's criminal law framework, the study concludes that urgent judicial and legislative reform is needed.
