Answer

Introduction

The exclusion of marital rape from India’s criminal law, specifically Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita (formerly Section 375 of IPC), persists as a colonial relic. It creates a legal fiction that marriage constitutes “permanent consent,” fundamentally violating the constitutional guarantees of dignity, privacy, and bodily autonomy.

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Need to Remove the Exception

• Upholding Bodily Autonomy: Constitutional values under Article 21 dictate that a woman does not lose her right over her body upon marriage.
  Eg: The Delhi High Court’s split verdict (2022), where Justice Rajiv Shakdher noted that the right to withdraw consent is an integral part of a woman’s fundamental rights.
• Equal Protection Clause: The exception creates an arbitrary classification between married and unmarried women, violating the Right to Equality under Article 14.
  Eg: This “intelligible differentia” lacks a rational nexus with the objective of protecting women from sexual violence.
• International Human Rights: India’s refusal to criminalize marital rape contradicts its commitments to international treaties like CEDAW, which mandates the elimination of all forms of violence against women.
  Eg: The UN Committee on the Elimination of Discrimination against Women has repeatedly urged India to criminalize marital rape.
• Erosion of Agency: Legalizing marital non-consent reinforces the patriarchal notion that a wife is the “property” of the husband, contradicting modern jurisprudence.
  Eg: The J.S. Verma Committee (2013) strongly recommended removing this exception to align laws with gender justice.

Associated Concerns

• Marital Institutional Stability: Critics argue that criminalizing marital rape might lead to the breakdown of the “sacrosanct” institution of marriage and increase divorce rates.
  Eg: Central Government’s initial affidavit expressing concern that the law could be used as a “tool of harassment” against husbands.
• Evidentiary Challenges: Proving a lack of consent within the privacy of a bedroom presents significant “he-said, she-said” hurdles for the judiciary.
• Misuse in Litigation: There are fears that the provision could be weaponized during divorce or maintenance proceedings to gain an unfair advantage.
• Administrative Preparedness: The police and judiciary currently lack the sensitivity and specialized training required to investigate sexual crimes within a domestic setting.

Conclusion

The transition from “status-based” to “consent-based” jurisprudence is inevitable for a vibrant democracy. India should adopt a middle-path by criminalizing the act while introducing stringent safeguards against false reporting. Strengthening the Domestic Violence Act and sensitizing the police will ensure that the “privacy of the home” does not become a sanctuary for sexual violence.

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