“ Marriage is not a license to rape.”
By- Justice Verma Committee in 2013
Introduction
In India where equality and dignity are seen as essential or we can say that fundamental rights, a woman’s ability to say “no” is still legally voided after marriage.
The criminal law of India’s still sees marriage as an area where sexual abuse or assault is not brought to trial; this legal blind spot silences many survivors of marital rape.
Whereas recent revisions have undertook to modernize India’s criminal justice system by exchange the Bhartiya Nyaya Sanhita (BNS), 2023 for colonial period laws, one precarious and outdated exception has wilfully lasted: The marital rape exception.
Indian law persists to consider forced intercourse between a husband and wife to be a personal issue rather than a social or criminal issue, despite broad trends towards recognizing sexual freedom without marriage.
Understanding the Marital Rape Exception in Law
Even though rape was mentioned under Section 375 of the IPC, 1860, non-consensual intimacy between a husband and a wife was clearly excluded from its definition if the wife was not less than 15 years old. This was called the “ marital rape exception”. Following years of antagonism, The Supreme Court lowered this age to 18 in independent Thought V. UOI, 2017, bringing it into line with the legal marriage and consent age. But adult women continue to be an exception.
The definition of rape in Section 63 was conserve in the new BNS, 2023 which defer the IPC.
The new law states:-
“It’s not rape when a man involves in sexual activity with his own wife as long as she in not younger than 18 years old.”
The idea that marriage entails invariable and permanent consent is sustained by this provision, which carries on the tradition of impunity.
Issues with Marital Rape Exception
- It contravene women’s right to self-reliance:
After marriage, the exception identifies a women’s body as her husband’s property. In Justice K.S Puttaswamy V. UOI, 2017, The Supreme Court declared the right to privacy as a element of the right to life, and this impairs her right to bodily integrity.
- It discriminate married Women:
A victim of rape who is not married is entitled to all available judicial relief. In a marriage, though, the indistinguishable behaviour is not even deliberated a crime. This is against both Article 21 and also article 14 of the Indian constitution which states right to life and equality.
- It grants ongoing Abuse:
Survivors regularly live with their abusers, with no way out or legal protection. Women are habitually more defenseless due to cultural norms, social disgrace, and economic dependency.
BNS, 2023:
A lost Possibility
There was positivism that antiquated colonial ideas would be abandoned when the BNS was enforced to replace the IPC. However, the same marital rape provision is restated in nearly similar terms in Section 63 of the BNS. This uniformity demonstrates the commonness of patriarchy in Indian Legislative thought. The state’s unwillingness to meddle in the “private Sphere” of marriage is shown in the refusal to remove this clause in spite of decades of promoting, international treaties, and internal judicial censure.
International Outlook
India is one of the few nations that has not made marital rape a crime. As per the UN: More than 100 nations have made marital rape a crime, either absolute or circuitously.
Marital Rape is illegal in the following countries:
U.K ( Since R V. R, 1991)
Nepal
South Africa
Australia
Canada
Germany.
India continues to maintain this discriminatory exception in violation of its international commitments, even though it is a signatory to the convention on the Elimination of all forms of discrimination against women (CEDAW)
The Cost to Society: Untold Stories
Social quiet is regularly bred by legal silence. Under the excuse of “marital duties”, survivors of marital rape are sometimes ignored by law enforcement, shamed by families, or dismissed by courts. Numerous Women seek remedy under the PWDVA, 2005, which recognizes sexual abuse, or apply for divorce u/s 13 of the Hindu marriage act, which is deals with cruelty.
However, criminal justice can’t be exchanged or replaced by these civil remedies. The fact that rape in a marriage has no criminal charges or penalties normalizes forced sexual behaviour and perpetuates the notion that a wife’s consent is subordinate to her husband’s rights.
The Way Ahead: Awareness, Policy, and Law
Exclude the Exception: Parliament must declare consent in marriage to be a legal need and remove the exception under Section 63 of the BNS.
Criminalize Marital rape as rape: Rape is rape, regardless of a person’s relationship status; there should be no distinct category.
Teach Law Enforcement: Juries, Prosecutors, and police officers need to be taught that marital rape is a crime or offense and not a “domestic issue”.
Public Awareness Campaigns: To change the cultural insight if marriage and consent, social education must go hand in hand with legal changes.
Support Services: It’s a essential to improve financial support, shelters, legal aid and counselling for survivors.
Conclusion: The silence needs to be broken
Sexual harassment shouldn’t be protected by marriage. All relationships, especially those that are meant to be based on mutual respect, love, and trust, must respect consent.
It is not only a legal failing but also a moral one for contemporary Indian law to uphold the marital rape exception.
India’s criminal justice system will keep failing to live up to its promise of equality and unless the law dignity quit considering wives as unconstrained sexual partners.
The time has come to end this vow of secrecy and admit marital rape as a crime instead of a contract.
