INTRODUCTION
The marriage has been considered to be one of the purest relationship under each religion. However, the sole intention of marriage defined under the laws is procreation of child, be it Hindu Marriages, Muslim Marriages, Christian Marriages or any other religion for that matter. There may be situations wherein one spouse is unwilling to engage in sexual intercourse and may refuse to do so with their partner. Under such circumstances, the concept of consent fails at large and the spouse may be forced to have sexual intercourse with the partner. Moreover, there are no specific laws wherein the spouse can get protection against such unwilling, unconsented sexual intercourse and hence falls under the ambit of RAPE which is still unrecognized and exempted under Section 63 exception 2 of Bhartiya Nyaya Sanhita, 2023[1] (hereinafter BNS)
In the current scenarios, people see RAPE as an act which is done by someone unknown to the victim but it is also a well-established fact that, if sexual intercourse done by anyone whether known or unknown without consent fells like rape only including spouse itself.[2] These concerns are remained unaddressed, unrevealed and unexplained and hence the researcher aims to identify the importance of consent for the purpose of sexual intercourse even after marrying, as it is an inherent right which cannot be transferred or waived off. Furthermore, in India a Rape is a heinous crime whereas Marital Rape is not illegal.
Apropos the same, there have been split verdict of Hon’ble Delhi High Court wherein it has been stated that the Exception 2 to section 375 of IPC, which does not make the marital rape as an offence is unconstitutional and must be struck down whereas on the flip side of the coin another Justice stated that it is constitutional as it is based on intelligible differentia hence valid. The researcher also aims to look after the breach of fundamental rights of a woman (if any) by not criminalizing the Marital Rape including the importance of Bodily autonomy and Bodily integrity. Inter Alia to the same this research also has encroached the jurisdiction of United Kingdom wherein the Marital Rape is a grave offence and the punishment is equivalent to the offence of Rape.
1.2 SIGNIFICANCE OF STUDY
This study holds significant value in addressing the pressing issue of marital rape and its legal implications in India, where it remains unrecognized as a criminal offense. By examining the importance of consent within marriage, the research seeks to challenge existing legal exceptions and highlight the violation of fundamental rights under Articles 14, 19, and 21 of the Indian Constitution. It aims to contribute to the ongoing debate on the criminalization of marital rape and its potential impact on the institution of marriage, providing insights into both legal and social reforms needed for protecting women’s rights and ensuring justice.
1.3 SUMMARY:
This study critically examines the legal and constitutional implications of marital rape in India, where it remains exempted under Section 63 Exception 2 of the Bharatiya Nyaya Sanhita, 2023. The research explores the historical and socio-legal contexts of marital rape, highlighting the importance of consent within marriage as a fundamental right tied to bodily autonomy and integrity. By analyzing case laws, literature, and international perspectives, particularly from jurisdictions where marital rape is criminalized, the study underscores the need for legal reforms to address this issue. It also evaluates the potential challenges, including societal perceptions and fears of marital dissolution, associated with criminalizing marital rape in India. Ultimately, this research aims to contribute to the ongoing discourse on protecting women’s rights and ensuring justice within the marital framework.
1.4 KEYWORDS;
Marital rape, consent in marriage, Indian legal system, fundamental rights
[1] S. 63 Bhartiya Nyaya Suraksha, 2023.
[2] Kersti and M. Gabriel, Marital Rape: Consent, Marriage, and Social Change in Global Context, OXFORD UNIVERSITY PRESS available at https://read.amazon.in/kp/kshare?asin=B01LD7OVIA&id=fbrunygj3vbd7pucx5i5hgk3ci, last seen on 11/11/2024.