ABSTRACT

The paper is a critical analysis of the legal and constitutional stance of the exception marital rape in India in the context of the sexual offence legislation. Although the Indian legal system has greatly developed especially since the Criminal Law (Amendment) Act, 2013, which was meant to incorporate a consent-based approach, the existence of marital rape exception offers a basic contradiction. The article discusses the statutory provisions including Section 375 and Section 376B of the Indian Penal Code and their equivalents in the Bharatiya Nyaya Sanhita. It also analyzes the problem in the context of the constitutional values, such as equality, dignity, and bodily autonomy as expressed in Articles 14 and 21. The paper notes the ineffectiveness of the current framework by using judicial developments, Law Commission reports, and international human rights standards. The paper ends with a call to reform the law to bring Indian law in tandem with the constitutional morality and international human rights standards.

Key Words: Marital Rape Exception, Consent-Based Framework, Bodily Autonomy, Constitutional Rights, Gender Justice

INTRODUCTION

Indian law towards sexual offences is an indication of progressive change towards the abandonment of colonial moralistic principles of morality to a contemporary rights-oriented approach based on consent, dignity and autonomy. The definition of rape in section 375 of the Indian Penal Code has experienced a remarkable change especially following the Criminal Law (Amendment) Act, 2013, which broadened the definition of sexual offence and established a standard related to consent. The marital rape exception still thrives, despite these forward-looking developments, is a critical inconsistency in Indian criminal law. The marital rape exception is based on the archaic common law principles that assume consent is irrevocable in marriage. Such an assumption is a sharp contrast to modern constitutional principles and judicial interpretations that acknowledge bodily autonomy and individual liberty as a core right. Though laws like Section 376B IPC do recognize to some degree the sexual autonomy in the event of separation in marriage, they do not similarly safeguard it in the context of cohabiting marriages, thus drawing an arbitrary line. This paper aims to discuss the legal framework of sexual offence, to discuss the inconsistency in the doctrinaire of the Law of the marital rape exception and to provide an assessment of whether the marital rape exception is constitutional. It discusses, also, the suggestions of several reports of the Law Commission, and of the Justice J.S. Verma Committee, that reform is badly needed due to the changing legal and social standards.

STATUTORY POSITION

The laws regulating sexual offences in India are a mix of old colonial laws, new legislation, judgments of the Supreme Court and the shift in the values of the constitution. Rape laws have changed a lot in response to the demand of society for justice in the gender equality context, but the marital rape exception is still a deep crevice in Indian criminal law.

The offence of rape was first coded in Section 375 of the Indian Penal Code (IPC). [1]It defined rape and enumerated when sexual intercourse was non-voluntary. The old wording reflected the Victorian morality and patriarchy with more emphasis on protection of chastity than on bodily autonomy.

The Criminal Law (Amendment) Act, 2013 was a wake-up call. [2]Introduced following the Delhi gang rape in 2012, based on the Justice J.S. Verma Committee, it[3] had a modernised definition of rape and enhanced the protection of women.

Although the Act is based on a consent framework, it retains Exception under Section 375 (2) which excludes marital rape from criminal prosecution. [4]Critics have argued that this perpetuates the patriarchal view of marriage and also denies married women equal protection.

When the Bharatiya Nyaya Sanhita (BNS) replaced the IPC, the organisational structure of the statutory framework was reorganised. Section 63 of the BNS now covers rape but still in similar terms retains the marital rape exception. [5]Procedural rules are taken from Bharatiya Nagarik Suraksha Sanhita (BNSS) and evidentiary rules are taken from Bharatiya Sakshya Adhiniyam (BSA). [6]

This continuity is evident in that the law has undergone a change in form but not in substance when it comes to the issue of marital rape.

[1] Indian Penal Code 1860, s 375.

[2] Criminal Law (Amendment) Act 2013.

[3] Justice JS Verma Committee, Report of the Committee on Amendments to Criminal Law (2013).

[4] Indian Penal Code 1860, s 375 Exception 2.

[5] Bharatiya Nyaya Sanhita, s 63.

[6] Bharatiya Sakshya Adhiniyam.