Author: Sanya Singh
I Year | Institute of Law, Nirma University, Ahmedabad

Introduction:

“What is important is that sexual violence has no place in society, and the institution of marriage is no exception.”^[1]

The institution of marriage is held sacred in India, woven into the fabric of society, and enshrined in both cultural traditions and legal frameworks. The Constitution itself upholds the sanctity of wedlock. However, this reverence for marriage creates a blind spot when it comes to women’s rights. While marriage signifies commitment and togetherness it can morph into an unsurpassable cage, restricting a woman’s autonomy and agency. This very institution becomes the place where her voice is silenced and her individuality is compromised.

The new criminal laws all set to be effective from July 1, were presented in the Parliament with a promise to free us from our colonial legacy and move towards a progressive criminal justice system. Surely, laws must evolve with society lest they hinder society’s progress.

Thus, the retention of a 162-year-old exemption clause that decriminalizes marital rape (Section 63, Exception 2) goes against the claim of the Bhartiya Nyaya Sanhita (BNS) being a progressive, anti-colonial law. It indicates a mere cosmetic change leaving the essential dynamics unchanged.

Background:

The Indian Penal Code (IPC) was implemented in India under British colonial rule in 1860 based on the draft prepared by Lord Macaulay. A glaring exception within the code decriminalized marital rape without any age limit. This provision stemmed from the archaic idea of implied consent based on the Doctrine of Hale. The doctrine is rooted in the notion that “by their mutual matrimonial consent and contract, the wife has given herself up in this kind to the husband,”. It effectively shields husbands from rape charges and protects their conjugal rights.^[2]

 The persistent continuance of this age-old concept within the modernized criminal justice system undermines the autonomy and rights of married women. It reinforces outdated gender roles and unequal power dynamics within marital relationships, failing to recognize a wife’s right to control her own body.

Dissecting Defenses: Inadequacies Of Arguments Against Decriminalization of Marital Rape

Presumption of Consent to Uphold the Sanctity of Marriage:

The lack of consent is fundamental to proving the offenses of rape. The law creates a bizarre anomaly for married women. Marriage is presumed to automatically grant consent for sexual intercourse, essentially erasing a wife’s right to say no. Recent rulings like the Madhya Pradesh High Court’s decision that even non-consensual “unnatural sex” within marriage doesn’t constitute rape, further compound the problem. These examples paint a disturbing picture: both lawmakers and the judiciary prioritize the supposed sanctity of marriage, even when it comes at the shocking expense of violating women’s bodily autonomy.

While criminalizing forced sex during marital separation, the law presumes cohabitation implies consent. This argument stems from the state’s goal, as highlighted in the 172nd Law Commission report, of protecting the “sanctity” of marriage. This creates a private sphere where women experiencing marital rape have no legal recourse.

It also exposes the state’s hypocrisy in intervening selectively within the private sphere. The Domestic Violence Act, for example, criminalizes domestic violence by husbands. Here, the state acknowledges the need to protect women within marriage, effectively conceding that safeguarding the institution cannot be the paramount concern. The harm inflicted upon women far outweighs any supposed societal damage caused by a broken marriage.

The Basis for Differentiating Married and Unmarried Women:

Article 14 of the Constitution provides “equality before law” and “equal protection of law to all.” Therefore, equals must be treated equally. Inequality must be justified based on intelligible differentia, i.e., a reasonable basis for the classification of a set of people placed differently in the eyes of law than the rest of the group.^[3]

Proponents of the exemption, clinging to outdated notions, argue that the differential treatment of married and unmarried women concerning rape is justified since marriage serves as a reasonable classification.  An incongruity stems from this untenable proposition that an act demonstrably criminal in other contexts somehow loses its criminality due solely to the marital status of the perpetrator and victim.

The marital status offers no intelligible differentia. To perpetuate this incongruity is to sanction a clear violation of the Constitutional mandate of “equal protection of law”.

Alternate Remedies to Marital Rape:

Opponents of criminalizing marital rape often cloak their resistance in the guise of existing legal remedies. Their primary argument centres around Section 85 of the BNS ^[4](analogous to Section 498A of the IPC), which addresses cruelty against women. However, this comparison crumbles under scrutiny. Cruelty, while undoubtedly a form of marital abuse, is a distinct concept from rape. This is substantiated by the treatment of rape as a distinct offense in the criminal statutes from assault or hurt.

Furthermore, the requirement of “grave injury” or “driving the woman to commit suicide” under Section 86 creates a high threshold for prosecution, ill-suited to encompass the spectrum of marital rape. Finally, the meagre three-year maximum sentence for cruelty pales in comparison to the potential life imprisonment for rape. This stark disparity in punishment further underscores the inadequacy of cruelty as a substitute for criminalizing marital rape.

Verma Committee Recommendations on Marital Rape Exemption:

Formed in 2012 following the Nirbhaya protests, the Justice J.S. Verma Committee proposed significant legal reforms to strengthen laws to curb crimes against women. The committee’s work marked a landmark departure from previous approaches. They advocated for the criminalization of marital rape, a groundbreaking step.

Their report offered a four-point plan for effective implementation: removing the exemption clause, clarifying that marital status is not a defense, eliminating the presumption of consent, and ensuring equal punishment.^[5]

Conclusion:

The continued existence of a marital rape exemption clause in the BNS exposes a disturbing truth: our legal system condones sexual violence within marriage.  Cultural acceptance of such violence only strengthens the case for criminalization. Marriage is a partnership, not a license to violate a spouse’s bodily autonomy. While legal frameworks address conjugal expectations, they cannot justify marital rape.

The argument that cultural acceptance excuses a crime crumbles in the face of marital rape. Just as no society thrives on violence, no marriage can flourish without consent. This reality demands immediate reform of the BNS. We must incorporate the Verma Committee’s recommendations to dismantle this archaic legal loophole. Only then can we build a society where marriage serves as a haven of respect, not a breeding ground for violence against women.

[1]Soibam Rocky Singh & Jagriti Chandra. (2022, May 11). Delhi HC delivers split verdict on marital rape. The Hindu. https://www.thehindu.com/news/cities/Delhi/delhi-high-court-delivers-split-verdict-on-marital-rape/article65403832.ece

[2]Explained | marital rape in India: The history of the legal exception – the Hindu. The Hindu. (n.d.). https://www.thehindu.com/news/national/explained-marital-rape-in-india-the-history-of-the-legal-exception/article65404106.ece

[3]Article 14 in Constitution of India. Indian Kanoon. (n.d.). https://indiankanoon.org/doc/367586/

[4]The Bharatiya Nyaya Sanhita, 2023. PRSIndia. (2023). https://prsindia.org/files/bills_acts/bills_parliament/2023/Bharatiya_Nyaya_Sanhita,_2023.pdf

[5]Justice J.S. Verma Committee, Report of Committee on Amendments to Criminal Law (January 23, 2013).