A Private Member’s Bill has been introduced in the Lok Sabha seeking the removal of the marital rape exception from the Bharatiya Nyaya Sanhita, 2023. 

Historical Context

• Hale Doctrine (17th Century): Based on irrevocable marital consent, asserting a husband cannot be guilty of rape within marriage.
• Modern Human Rights View: Consent is a fundamental individual right, irrespective of marital status.
• Global Legal Shift: The United Kingdom abolished the marital rape exemption (1991), while India retains it.
• Current Indian Law: Exception 2, Section 63 of the Bharatiya Nyaya Sanhita, 2023 continues the marital rape exception.
• Key Implication: The provision perpetuates archaic legal doctrine and creates a legal vacuum for married women facing sexual violence.

Constitutional Violation

• The exception is argued to violate the five pillars of Indian democracy: 
  • Equality (Articles 14-18), Dignity (Article 21), Individual Agency (Article 19), Privacy, and Bodily Autonomy (Bodily autonomy is a core component of personal liberty under Article 21).

Legal Defencelessness of Married Women

• Absence of Criminal Remedy: Married women cannot seek prosecution for rape against their husbands. 
  • The law fails to recognise sexual violence within marriage as a crime, leaving victims without adequate legal protection.
• Forced Assertion of Conjugal Rights: Separated husbands often use force to assert conjugal claims. 
  • The marital rape exception shields such acts and legitimises coercion under the guise of marriage.

Empirical Evidence of Harm

• NFHS-5 Evidence: 83% of women (18–49 years) facing sexual violence identified their current husband as the perpetrator.
• Systemic Nature: Sexual violence within marriage is widespread and structural, not incidental.
• Legal Gap Exposed: The data highlights the inadequacy of existing legal protections.
• Domestic Vulnerability: The home becomes a site of repeated violation, effectively sanctioned by patriarchal law.
• Compounding Silence: Legal silence further deepens women’s vulnerability and impunity.

Recommendations and Obligations

• Justice Verma Committee (2013): Unequivocally recommended removal of the marital rape exception, holding that marriage does not imply irrevocable consent.
• Legal Contradiction: Exempting husbands creates an internal inconsistency within rape jurisprudence.
• CEDAW Obligations: India is bound by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to eliminate discrimination, including within marital relations.
  • The marital rape exception directly violates CEDAW commitments.
• Constitutional Backing: Article 253 empowers Parliament to legislate in conformity with international treaties, while Article 51 mandates respect for international law.
• Clear Mandate: Together, these provisions constitutionally compel removal of the marital rape exception to uphold human rights obligations.

Counter-Arguments Against Criminalising Marital Rape

• Sanctity of Marriage: It is argued that the sanctity of marriage grants special protection to marital relations, limiting criminal law intervention.
• Assumption of Sexual Access within Marriage:  Marriage is treated as providing an all-encompassing grant of sexual access to the husband.
• Patriarchal Notion of Family Unity:  Resistance stems from the belief that a woman’s identity within marriage is secondary to her husband and the family unit.
• Fear of Misuse of Law: Criminalising marital rape is opposed because it may lead to false or vengeful complaints by wives.

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Way Forward

• Robust investigations: Misuse concerns should be addressed through robust investigations and judicial procedures.
• Violence as a Crime Regardless of Relationship: Violence must be recognised as a crime, irrespective of who the perpetrator is or their relationship to the victim.

Conclusion

Removing the marital rape exception from the Bharatiya Nyaya Sanhita is essential to restore a woman’s agency over her sexual rights within marriage, ensure dignity for all individuals, and truly embody gender-based equality in Indian society.

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