Abstract
Marital rape continues to be one of the least addressed forms of sexual violence in India. Despite a historic overhaul of the criminal laws through the Bharatiya Nyaya Sanhita, 2023 (BNS) replacing the Indian Penal Code (IPC), and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replacing the Code of Criminal Procedure (CrPC), the substantive position on marital rape remains largely unchanged. This article analyses the current legal position, highlights constitutional concerns, judicial interpretations, and international perspectives, and discusses how the BNS and BNSS have impacted the procedural and substantive aspects of marital rape in India.
Introduction
Rape is the most serious form of sexual assault under criminal law. Historically, Indian law carved out an exception for marital rape, effectively immunising husbands from prosecution. This immunity was grounded in colonial-era thinking the notion that a wife’s consent to sexual intercourse is irrevocable upon marriage.
In December 2023, India enacted sweeping reforms:
Bharatiya Nyaya Sanhita, 2023 (BNS) replaced the IPC.
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced the CrPC.
Although hailed as a modernisation of criminal law, these enactments did not abolish the marital rape exception. This article critically evaluates the new legal position, situating it within constitutional jurisprudence and global standards.
Legal Framework under BNS and BNSS
1. Section 63, BNS (Definition of Rape)
Section 63 of BNS replaces Section 375 of the IPC. It defines rape using largely the same language but retains the marital rape exception:
“Sexual intercourse by a man with his own wife, the wife not being under 18 years of age, shall not be considered rape.”
Thus, the marital rape exception survives in the new statute.
2. Section 64, BNS (Punishment for Rape)
This provision mirrors Section 376 IPC. It prescribes punishment for rape but does not cover marital rape beyond the age threshold, except in aggravated situations such as judicial separation.
3. BNSS (Procedural Changes)
BNSS replaces CrPC and governs investigation, FIR registration, victim statements, medical examinations, and trial procedures. While it modernises and digitises processes (for example, e-FIRs, video recording of statements, faster trials), it does not alter the substantive immunity for marital rape.
4. Other Laws Remain Unchanged
The Protection of Women from Domestic Violence Act, 2005 continues to provide civil remedies like protection orders and residence orders for sexual abuse within marriage. Section 498A of BNS (corresponding to Section 498A IPC) still addresses cruelty by husband or relatives but does not criminalise marital rape per se.
5. Constitutional Provisions Still Apply
- Article 14 (Equality before Law)
- Article 15 (Prohibition of Discrimination)
- Article 21 (Right to Life and Personal Liberty)
These articles remain the bedrock for constitutional challenges to the marital rape exception under BNS.
The Proof – Judicial & Doctrinal Analysis
1. Colonial Legacy of Marital Rape Exception
Derived from Sir Matthew Hale’s 17th-century English doctrine, the marital rape exception reflects a patriarchal assumption inconsistent with modern constitutionalism.
2. Key Judicial Pronouncements
Independent Thought v. Union of India (2017)
The Supreme Court held that sexual intercourse with a wife aged 15–18 amounts to rape, reading down the earlier exception.
Though limited to minors, it was a landmark affirmation of bodily autonomy within marriage.
Joseph Shine v. Union of India (2018)
Struck down adultery under Section 497 IPC, recognising equality and autonomy of married women.
Signalled that marital status does not eclipse individual rights.
Justice K.S. Puttaswamy v. Union of India (2017)
Right to privacy includes bodily autonomy and decisional freedom, forming the basis for rethinking marital rape immunity.
RIT Foundation v. Union of India (Delhi High Court, 2022)
Split verdict on marital rape exception: Justice Rajiv Shakdher struck it down as unconstitutional; Justice Hari Shankar upheld it.
Matter now pending before the Supreme Court, which will likely address it under BNS as well.
3. Impact of BNS and BNSS on Marital Rape
While BNS has renumbered and rephrased certain provisions, substantively nothing changes regarding marital rape. The exception survives under Section 63, and BNSS simply governs procedural aspects without introducing a new offence. Therefore, the ongoing constitutional challenge now shifts to BNS provisions.
Constitutional & Human Rights Dimensions
1. Right to Bodily Integrity and Autonomy
Marriage does not nullify a woman’s right to bodily autonomy. The marital rape exception violates Article 21’s guarantee of dignity and privacy.
2. Equality before Law
By creating a distinction between married and unmarried women, the exception offends Article 14’s guarantee of equality.
3. International Obligations
India is a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Global human rights standards increasingly call for criminalising marital rape.
Comparative Perspective
- United Kingdom: Marital rape criminalised in 1991 (R v. R).
- United States: All 50 states criminalise marital rape, though standards vary.
- Nepal, Bhutan, South Africa: Have criminalised marital rape as an independent offence.
Arguments for and Against Criminalisation
Arguments Against (Retaining Exception) Arguments For (Removing Exception)
Protect marital privacy and sanctity Marriage does not equal perpetual consent
Fear of misuse Safeguards can prevent false cases
Civil remedies are enough Criminalisation needed for deterrence and justice
Cultural norms Constitutional morality > Social morality
Challenges to Criminalising Marital Rape
- Evidence: “Word versus word” scenarios.
- Social Stigma: Fear of reporting by women.
- Judicial Sensitisation: Training needed to handle such cases fairly.
- Support Systems: Need for shelters, counselling, and medical aid.
Conclusion
The Bharatiya Nyaya Sanhita, 2023 and Bharatiya Nagarik Suraksha Sanhita, 2023 represent the most sweeping reforms to India’s criminal laws since independence. However, they have not criminalised marital rape. The new Section 63 of BNS retains the same exception found in Section 375 IPC.
While procedural improvements under BNSS may speed up justice delivery in sexual assault cases generally, they do not yet provide substantive justice to married women facing sexual violence. Constitutional morality, evolving jurisprudence, and international human rights standards collectively point toward the need to abolish the marital rape exception in India. Marriage cannot be a licence to violate consent.
FAQs
Q1. Is marital rape a crime under the new BNS?
A: No. Section 63 of BNS retains the marital rape exception, exempting husbands from rape charges if the wife is over 18 years of age.
Q2. Does BNSS offer any change in how such cases are handled?
A: BNSS modernises procedures (FIRs, evidence, timelines), but without a substantive offence of marital rape, it only affects process, not liability.
Q3. What remedies does a wife have under current law?
A: She can file under the Protection of Women from Domestic Violence Act, 2005 for civil reliefs or under Section 498A BNS for cruelty, but criminal prosecution for marital rape (if over 18) is still barred.
Q4. What did the Delhi High Court decide about marital rape?
A: Delivered a split verdict in 2022. Now pending before the Supreme Court, which may interpret the BNS provisions in light of constitutional rights.
Q5. How do other countries treat marital rape?
A: Most have criminalised it, including the UK, US, Nepal, and South Africa, aligning with international human rights standards.
References
1. Bharatiya Nyaya Sanhita, 2023 – Sections 63 & 64.
2. Bharatiya Nagarik Suraksha Sanhita, 2023 – Procedural provisions replacing CrPC.
3. Protection of Women from Domestic Violence Act, 2005.
4. Independent Thought v. Union of India (2017) 10 SCC 800.
5. Joseph Shine v. Union of India (2019) 3 SCC 39.
6. Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.
7. RIT Foundation v. Union of India, Delhi High Court (2022).
8. CEDAW Convention, 1979.
9. R v. R [1991] UKHL 12 (UK).
10. Law Commission of India, 172nd Report on Review of Rape Laws (2000).
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