PM [1]
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#1
Your columnist introduced a Private Member's Bill during this session of Parliament. The proposed legislation aims at removing the provision exempting marital rape in India. Section 63 of the Bharatiya Nyaya Sanhita (one of the three new criminal laws passed by this government) continues to provide a disturbing exception for marital rape, undermining the autonomy and equality of women. This archaic exception sends a dangerous message—that a woman's right to consent is irrelevant once she enters into marriage. This exception, rooted in outdated beliefs and patriarchal systems, is not just an affront to the dignity of women but also a direct violation of a woman's constitutional rights, including personal liberty, equality and privacy. The new Private Member's Bill proposed by your columnist seeks to plug this loophole and ensure that marital rape is not excluded from the purview of criminal laws.
The Origin Of The Exception
The origins of the marital rape exception can be traced back to 17th-century England. Sir Matthew Hale's interpretation of the law proclaimed that a husband could not be guilty of raping his wife because, through marriage, the wife had consented to sexual intercourse and had no right to retract that consent. The British colonial legal system did not recognise the equality of men and women. This view persisted when the Indian Penal Code (IPC) was drafted in the 19th century. Subsequently, Section 63 of the BNS explicitly provides an exception to the definition of rape, stating that sexual intercourse by a man with his wife, who is over the age of 18, cannot be considered rape. This bizarre exception has remained, despite multiple recommendations for change. As a member of the Joint Parliamentary Committee (JPC), which (hurriedly) examined the new laws, your columnist and other Members of Parliament, mainly belonging to Opposition parties, submitted dissent notes objecting to this provision.
The 42nd Report of the Law Commission (1971) suggested the removal of this exception. In 1983, the IPC was amended to criminalise spousal rape. This exception was restricted to cases of judicial separation. However, the broader exemption to marital rape remains in place. International bodies like the United Nations and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) have consistently urged India to remove this exception, viewing it as a violation of women's rights. The Justice Verma Committee, in response to the Delhi gang rape case of 2012, also recommended the deletion of this exemption. The Government had other ideas—choosing misogyny over reform.
The Protection of Women from Domestic Violence Act (2005), while recognising marital rape as a form of domestic violence, stopped short of criminalising it. This leaves married women vulnerable to repeated assaults without any legal recourse.
Personal Liberty And The Right To Reproductive Choices
The Right to Life under Article 21 of the Constitution has been interpreted extensively by the Indian judiciary, and in its attempt, now includes the right to live with dignity, to have safe living conditions, and to exercise personal liberty. This interpretation is critical when discussing the issue of marital rape. The sexual rights of a woman are a vital component of her personal liberty. The exception denies women control over their own bodies. As the courts have recognised, reproductive choices include the right to abstain from sex, use contraception, or decide not to have children. Denying women this discretion within marriage exacerbates gender-based discrimination and violence.
Privacy And The Right To Personal Autonomy
The argument that marital rape should not be criminalised because it infringes on marital privacy is based on a deeply flawed understanding of both privacy and marriage. The right to privacy, enshrined under Article 21, is not just about being left alone but also about the liberty of individuals in making personal decisions, including the right to control their own bodies and sexual lives. The landmark Puttaswamy judgment on privacy recognised that decisional autonomy—whether related to sexual activity, reproductive choices, or personal relationships—are inviolable. Rape, regardless of whether it occurs within a marriage, is a violation of privacy and bodily integrity.
Equality Before The Law
Article 14 of the Indian Constitution guarantees equality before the law, yet marital rape laws in India clearly discriminate against women. While rape laws recognise the rights of women in general, the exemption for husbands means that wives are denied equal protection under the law. The exception of marital rape is not only a legal anomaly; it is a profound injustice that violates a woman's constitutional rights of personal liberty, equality, and dignity. The Indian state has a moral and legal obligation to protect the rights of its citizens, particularly women, and to ensure that all individuals, regardless of marital status, are entitled to equal protection under the law.
The state's failure to remove this exception only perpetuates the cycle of violence and discrimination that continues to plague women in marriage and in society. It is time for the Union government, its allies and members of the Opposition to come together to pass a law that reflects the dignity, and equality of women.
(Derek O'Brien, MP, leads the Trinamool Congress in the Rajya Sabha)