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Criminalizing Marital Rape in India

The paper examines the legal exemption of marital rape in India, arguing that it perpetuates patriarchal norms and violates women's fundamental rights. It critiques the current legal framework, particularly Exception no 2 under Section 63 of the Bharatiya Nyaya Sanhita, and highlights the need for criminalization of marital rape as recommended by the Justice Verma Committee. The authors call for legislative and judicial reforms to protect women's autonomy and address the sociological and psychological impacts of marital sexual violence.

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Liya Mathew
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9 views2 pages

Criminalizing Marital Rape in India

The paper examines the legal exemption of marital rape in India, arguing that it perpetuates patriarchal norms and violates women's fundamental rights. It critiques the current legal framework, particularly Exception no 2 under Section 63 of the Bharatiya Nyaya Sanhita, and highlights the need for criminalization of marital rape as recommended by the Justice Verma Committee. The authors call for legislative and judicial reforms to protect women's autonomy and address the sociological and psychological impacts of marital sexual violence.

Uploaded by

Liya Mathew
Copyright
© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd

ABSTRACT

Theme: Social Justice, Inclusion And Emerging Challenges


Sub-theme: Gender justice: Constitutional provisions, women's rights and
patriarchal conundrums
Title: Rape Is Rape: Challenging The Fiction Of Implied Consent In
Marriage, And The Denial Of Recognition Of Marital Rape

Marriage is a union of two individuals founded on mutual trust and respect. However, this
relationship is undermined when force enters. Even though our constitution guarantees us
rights of equality, dignity, and personal liberty, the concept of marital rape has not been
criminalised. This paper critically examines the continued legal exemption of non-consensual
sexual intercourse within marriage, focusing on Exception no 2 under Section 63 of the
Bharatiya Nyaya Sanhita (BNS), 2023.
The paper argues that this exception is a relic of the patriarchal system that violates a married
woman’s fundamental rights. This has created a legal loophole to shield the husband from
criminal liability. The criminalization of marital rape was one of the recommendations of the
Justice Verma Committee, a mandate which remains unfulfilled even under the newly
codified Bharatiya Nyaya Sanhita.
The author examines existing legal frameworks and how decisions based on these have
perpetuated injustice against women in marriage. The author supports the landmark decision
of the Karnataka High Court in Hrishikesh Sahoo Vs State of Karnataka & Others (2022), a
step forward in voicing marital rape. Moreover, the author highlights the legal gap in India’s
legal system by comparing Indian legislation with international frameworks that have
penalised marital rape. The paper criticizes the unreasonable distinction between minor and
major married women, which fails to acknowledge that the crime of rape with an identical
actus reus cannot be distinguished solely due to the marital status of the victim. Also, the
presumption of implied consent merely by the status of marriage is fundamentally flawed,
and this hinders a woman’s right to her bodily autonomy and right to equality.
In a nutshell, the paper addresses the sociological and psychological consequences of marital
sexual violence and concludes with legislative and judicial recommendations to address
marital rape, urging protection for women and their autonomy.
Keywords: Marital rape, marriage, constitutional rights, sexual violence, women’s autonomy.

Submitted by:

AUTHOR: Liya Mathew


Mar Gregorios College of Law, Trivandrum
Email: lmathew2582002@[Link]
Contact: 7994007579

CO-AUTHOR: Firdous A
Mar Gregorios College of Law, Trivandrum,
Email: [Link]@[Link]
Contact: 7025988315

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