The Imperative to Strengthen Legal Recognition of Marital Rape in India

Abstract

This paper is a critical evaluation of the present legal provisions relating to marital rape in India. India remains on of the countries which does not criminalize marital rape reflecting the lack of progressiveness. Marital Rape can be defined as the act of nonconsensual sexual intercourse or other acts of sexual nature by an intimate partner. Under Exception 2 of Section 63 of The Bharatiya Nyaya Sanhitha,2023 it is stated that “Sexual Intercourse or Sexual Acts by a man with his own wife, the wife not being under 18 years of age is not rape.” Thus, decriminalizing the act of marital rape further leading to denial of justice to victims of the aforementioned offence. Under BNS,2023 “rape” is defined as sexual violence in all forms which involves nonconsensual intercourse with another woman. India still lags behind global standards that acknowledges marital rape as a punishable offense subject to criminal sanctions. The reasons behind decriminalization of marital rape can be found in several Parliamentary Debates and Judicial rulings. The reasons ranges from protecting the institution of marriage arguing that criminalizing marital rape could interfere excessively with the marital relationship, to the already existing alternative remedies in law. The marital rape exemption under BNS, 2023 violates Article 14 of the Constitution of India which guarantees the right to equality before the law and equal protection of the laws. Numerous international jurisdictions have removed spousal exemptions and criminalize marital rape explicitly. This paper will discuss the significance of criminalizing the act of marital rape in India emphasizing that the current legal framework fails to protect women’s rights and violates gender equality and bodily autonomy.