Abstract
The Marital Rape Exception in the Indian criminal law represents a profound paradox where all forms of non-consensual sexual intercourse are punishable except within the marital relationship. Such an exception is rooted in colonial jurisprudence and a patriarchal mindset regarding a woman’s status in marriage, which grants husbands complete legal immunity for sexual intercourse that otherwise would have constituted rape, disregarding the wife’s bodily autonomy. Despite constitutional guarantees of dignity, bodily autonomy, equality and privacy, several criminal amendments to the IPC, and the subsequent enactment of Bharatiya Nyaya Sanhita, the exception has still been retained, demonstrating a deliberate legislative intent to preserve it rather than a mere legislative oversight.
This article critically examines the MRE as a constitutional anomaly, which is in clear violation of Articles 14, 15, 19(1)(a), and 21 of the Constitution. It demonstrates how the exception creates an irrational and arbitrary distinction between married and unmarried women thereby denying married women equal protection of the law, suppresses a married woman’s consent in marriage and violates her bodily autonomy and dignity. The exception primarily rests on a legal fiction of implied and irrevocable consent by the wife, which is inconsistent with the current understanding of consent as continuous and revocable.
The article further argues that the often-invoked justification of sanctity of marriage is legally flawed, for courts have held that constitutional morality must prevail over social morality and that popular opinion cannot dictate rights guaranteed by the constitution. The article concludes that the abolition of marital rape exception is not merely desirable but constitutionally necessary to protect women from sexual violence in a marriage.
Introduction
Marital Rape Exception (MRE) refers to the statutory exemption within the criminal law that excludes non-consensual sexual intercourse by a husband with his wife from the purview of rape. It provides legal impunity to sexual acts by the husband against his wife, irrespective of the wife’s consent. Such an exception is embodied in Section 375 of the Indian Penal Code, which defines rape and carves out an exception stating that any kind of sexual act by a husband with his wife would not amount to rape under the section, unless she is below 18 years of age[1]. The irony of this section is that though it recognizes that a sexual intercourse might amount to rape and is rape under ordinary circumstances would not attract criminal liability solely because of the marital relationship between the parties.
Historical Origin: Colonial Legacy and Patriarchal Foundations
MRE has its origin in the English common law and was incorporated by the British in the Indian Penal Code, without taking into consideration the indigenous social realities or women’s rights in India. This reflected the Victorian morality, patriarchal family structures and an overriding concern to preserve male authority in marriage. Sexual access was treated as a marital right of the husband and not a matter of ongoing consent. Post-Independence India retained the IPC, including the marital rape exception.Despite several criminal amendments in 1983 following the Mathura rape case[2] and 2013 after the Nirbhaya incident[3], no efforts were made to remove the marital rape exception. The Justice Verma Committee recommended the removal of MRE, stating that marriage should not be used as a defence to rape[4]. However, this recommendation was rejected by the Parliament stating that criminalizing marital rape would undermine the sanctity of marriage and could be misused.
The enactment of Bharatiya Nyaya Sanhita, 2023, which sought to remove all forms and impressions of outdated provisions and colonial imprint on the earlier criminal laws, failed to remove this exemption that violates the very purpose Section 375 seeks to fulfil, which is to protect the bodily autonomy and dignity of women and is grounded in colonial jurisprudence.
[1]Bharatiya Nyaya Sanhita, 2023, Act No. 45 of 2023, § 375 (India)
[2]The 1972, Mathura rape case, where a minor was raped by two police officers, which led to the Criminal Law (Second Amendment) Act, 1983 (No. 43 of 1983), to include provisions for custodial rape.
[3]The 2012, Nirbhaya Gangrape case, which exposed the narrow definition of rape, inadequate punishments and weak procedural safeguards, that led to the Criminal Law (Amendment) Act, 2013 (No. 13 of 2013).
[4] Justice J.S. Verma Committee, Report on Amendments to Criminal Law, Pg. 72–74 (2013).