The exemption of marital rape under the Indian Penal Code (IPC) and recently under the Bharatiya Nyaya Sanhita (BNS) sparked scrutiny. Both laws currently state that sexual intercourse by a man with his wife is not classified as rape if she is over 18 years old.
New Delhi: Today, three new criminal laws have come into effect in the country, the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Adhiniyam. While these laws promise a major overhaul of the colonial-era Indian Penal Code (IPC), they raised concerns due to their failure to criminalize marital rape.
Under the previous IPC, and now under the new Bharatiya Nyaya Sanhita (BNS), sexual intercourse between a man and his wife, if she is over the age of 18, not considered rape. However, the law does criminalize sexual intercourse with a wife who is a minor.
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The petitioner argued that the provisions in question, which link a woman’s consent to her marital status, are clearly arbitrary. They contended that the exception for marital rape violates Articles 14 and 15 of the Constitution, which guarantee equality and prohibit discrimination, by disregarding a married woman’s consent and perpetuating harmful gender stereotypes.
Additionally, they claimed it infringes on Articles 19(1)(a) and 21, denying married women their rights to bodily integrity, autonomy in decision-making, and dignity.
In 2022, the Delhi High Court issued a split verdict on the issue of marital rape. One judge deemed the marital rape exception “unconstitutional,” emphasizing that it would be “tragic if a married woman’s plea for justice remains unheard even after 162 years” since the IPC’s enactment.
Conversely, another judge opined that the exception under the rape law is not unconstitutional and is justified by a valid distinction.
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Critics argue that the marital rape exemption undermines the fundamental rights of women, particularly their right to bodily autonomy and personal dignity. The United Nations and various international human rights bodies repeatedly called on India to criminalize marital rape, stating that the exemption violates women’s rights and fails to provide them with adequate legal protection against domestic violence.
The criticism of the marital rape exemption in India’s new criminal laws highlights a critical gap in the country’s legal framework concerning women’s rights. As the debate continues, it is imperative for lawmakers, activists, and society at large to engage in constructive dialogue and work towards a legal system that unequivocally upholds the rights and dignity of all individuals, regardless of their marital status.