Constitutionality of The Exclusionary Clause of Marital Rape in India

Abstract

The United Nations Convention on the Elimination of all Forms of Discrimination against Women, of which India is a signatory, proposes in its resolution that “marital rape” should be criminalised and that this sort of discrimination is an apparent infringement of the law of equality and human dignity. Unfortunately, India is still one of the countries wherein consent is irrevocable within the bounds of marriage. The arguments opposed to criminalising marital rape are varied but limited in nature. Simply put, they are devoid of the pillars of constitutionality that happen to be the building block of every law framed in India. Furthermore, the Preamble, which is a basic structure of the Indian constitution, solemnly resolves to secure to all citizens — justice, liberty of thought and expression, and equality of status; in real life, however, India is way behind in executing it. This article emphasizes the unconstitutionality of the Marital rape exclusion clause under the Indian Penal Code and its violative nature towards an individual’s fundamental rights guaranteed under Article 14 and Article 21 of the Indian Constitution specifically.