RIGHTFULLY OURS

Introduction

The story of the fictional character Pooja Kumari in the Indian web series Chiraya (2026) is a lived reality for many women. This series sheds light on the problematic truth that Indian law refuses to recognize sexual violence committed against a woman if the perpetrator is her husband. It views marriage as an entitlement given to the husband over wife’s body.

While rape is recognized as a grave offence in our country, such an act of violence within a marriage is explicitly excluded by the exception of Section 63, Bhartiya Nyaya Sanhita. This colonial-era law assumes that by way of marriage, women give irrevocable consent to their husbands, undermining the constitutional guarantees of equality and dignity. It raises an unavoidable question about whether the institution of marriage should shield perpetrators from criminal accountability.

Colonial Origins and the Current Legal Framework

Rape is a criminal offence in India under Section 63 of the Bhartiya Nyaya Sanhita. This section criminalizes non-consensual invasive sexual actions forced onto a woman. The major inadequacy of this provision is that it refuses to recognize marital rape as a crime.  Therefore, the current Indian legal system presumes that a wife delivers perpetual consent for sexual intercourse by entering into a marriage.

This law was first introduced in 1860 with the inception of the Indian Penal Code. At the time when the IPC was drafted, a married woman was not allowed to have an independent legal entity of her own and was considered the chattel of her husband. Laws drafted during this period reflected this regressive norm of the patriarchal society, which believed women were subservient to men. More than 150 years have passed since the enactment of this arbitrary law. The society has largely moved on from this regressive ideology. Today, the Indian Constitution guarantees equal rights to all its citizens.

Government’s Position

The Government of India has consistently defended the marital rape exception on two principal grounds. The fundamental argument being the notion of implied consent within marriage, where entry into marriage is deemed as a standing and irrevocable consent for sexual intercourse, locating consent in marital status instead of the act.

Secondly, the government argues that criminalizing marital rape would fundamentally alter the legal understanding and implications of marriage, backing its stance by stating that such an adverse action will impact the sanctity and stability of marriage, which it regards as a foundational social institution. They have constantly expressed that criminalizing marital rape will negatively affect family relations and disrupt broader social interests.

Flaw in Government’s Position

The government’s position is undermined by its own internal contradiction. In an affidavit before the Supreme Court, the Union of India acknowledged that “marital rape ought to be illegal and criminalized” while, on the other hand, maintaining that the legal consequence of rape should differ depending on marital status. This has been countered by the Justice Verma Committee in 2012, which recommended that the marital rape exception should be omitted. It stated that laws must change with the changing society.

A legislative attempt was made after these recommendations to remove this exception, but the justification given by the 167^th Parliamentary Standing Committee Report on Home Affairs on the Criminal Law (Amendment) Bill, 2012 held that: “If a woman is aggrieved, there are other means but if marital rape is brought under the law the entire family system will be under great stress”.

The government’s arguments are further weakened by data findings that suggest that most instances of sexual violence occur within marriage, and only 10% of victims report such abuse. Furthermore, such victims also experience other forms of intimate violence, including physical, emotional, and psychological abuse, exposing them to mental health risks. Hence, the government’s stance stands weakened and hollow.

Marriage as a Private Sphere

This is an orthodox view where human relations are classified into public and private spheres, and that the law’s purpose is held only to regulate the public sphere. A similar argument has been used to justify the marital rape as an aspect of individuals private life where law has no application. This view has long been abandoned by the English Law due to its obvious flaws and inconsistencies. Indian constitutional law has reached the same conclusion in Joseph Shine v. Union of India, that marriage cannot operate to decriminalize conduct that would otherwise attract penal liability. Thereby rejecting the notion that one’s marital relationship places conduct beyond the law’s reach.

There are numerous instances where the Law has gone into regulating this private sphere in matters like dowry, child marriage, abortion, and domestic abuse. Therefore, making a distinction between these similar areas of private life and marital rape lacks rationale.  This subjective exclusion stems from the social stigma associated with the act, which the government is uncomfortable addressing.

Limits of Cruelty as an Alternate Remedy

The government argues that section 85 of the BNS, which defines the crime of Cruelty, already exists as a remedy for marital rape.  Although this section is very broad in nature, making it capable of covering instances of marital rape, the reason why it is not a feasible option is that the threshold for its conviction is very high. It requires repeated instances of the act to occur over a long period of time. This would mean that a single instance of marital rape fails to be convicted under this section. Another requirement of this section is that the woman must be driven by the said acts to commit grievous injury to herself. Section 85 fails on all three counts, as it requires repeated acts, a higher threshold of harm, and does not accord the same social and legal recognition afforded to rape as an offence.

The inadequacy of this section was clearly illustrated by the Supreme Court’s judgment in Bomma Ilaiah vs The State of AP.[1] In this case, the husband sexually abused his wife during which he inserted a metal stick into her vagina. This caused the wife to bleed severely and lose consciousness. Despite this horrific act, the Court was unable to convict the husband under cruelty as the act was not committed repeatedly over a period of time. This demonstrates concretely that cruelty provisions are structurally incapable of capturing single, severe acts of sexual violence, regardless of their brutality.

Another crucial aspect to consider is that the nature of rape is distinct from any other form of mental and physical violence. It has a complex patriarchal power structure attached to it. The perpetrator must accordingly be charged and convicted under the offence that corresponds to the actual conduct committed, i.e. rape rather than a lesser offence such as cruelty, which carries a different actus reus, a different evidentiary threshold, and a materially lower sentencing consequence.

Violation of Article 14 & 21

The exclusion of married women from the purview of rape violates Articles 14 and 21 of the Indian Constitution. Article 14, which guarantees equality before the law, has been read time and again as an antidote to arbitrary discrimination. Excluding women from this law fails the reasonable classification test applicable on such exclusions, making it unconstitutional. Further, life with human dignity is guaranteed by Article 21 of the Constitution. The dignity of married women is violated when they are refused justice by law just because they are married.

International Comparison

Looking at the global level, various international organizations have consistently held that marriage cannot operate as a justification for non-consensual sexual acts. The UN Convention on the Elimination of Violence against Women (CEDAW) explicitly identifies marital rape as a form of violence. While the CEDAW framework and other human rights conventions emphasize that women are entitled to equal protection by law irrespective of their marital status.

In R v. R,[2] the English Court rejected the idea of irrevocable consent and held that marriage does not extinguish a woman’s right to refuse sexual intercourse. IPC was drafted by the British, who were influenced by the then prevailing societal norms. With the changing society, they adapted and recognized women as an equal counterpart. The comparative analysis is significant to note as the exception was inherited by India from English common law. While England itself discarded the doctrine of irrevocable marital consent in R v. R over three decades ago. What remains in Indian law, then, is not a settled feature of domestic legal tradition but an artefact whose source has since been repudiated.

In the United States, Courts have recognized that the marital rape exception violates the principle of equal protection. It held that a marriage cannot be construed as a license to commit sexual violence through the case of People v. Liberta.[3] Beyond these jurisdictions, countries like Canada, Australia, Germany, Sweden, Japan, South Africa, Nepal and Bhutan have also criminalized rape within marriage by placing consent at the center of sexual offences legislation.

Recommendations

As part of the reforms, the Parliament should amend Section 63 of the Bharatiya Nyaya Sanhita to omit Exception 2 in its entirety, thereby removing marital status as a justification for the offence of rape. An explanation must also be inserted expressly stating that the existence of a marital relationship between the accused and the victim shall not constitute as a defense or grounds for a reduced sentence. Such an amendment would ensure that there is no ambiguity left, and ignorance of the law cannot be pleaded as a defense, as recommended by the Justice Verma committee report in 2012. Parliament must also codify precise evidentiary thresholds correspondingly in the Bharatiya Nagarik Suraksha Sanhita. Establishing rigorous procedural safeguards will mitigate the risk of statutory misuse while simultaneously fortifying the integrity and efficacy of the provision.

Conclusion

Fundamentally the marital rape exception is founded on an assumption that a wife’s consent is perpetual, and her bodily autonomy ends by entering into a marriage. Such an assumption is inconsistent with the Indian Constitutional values and guarantees. As long as the law continues to deny married women equal protection against rape, it continues to protect perpetrators who use marriage as a shield to commit sexual violence. Therefore, criminalizing marital rape by removing the exception of Section 63 would ensure that married women are not denied the justice they deserve.

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[1] Bomma Ilaiah v. State of Andhra Pradesh, (2003) 12 SCC 334.

[2] R. v. R., [1992] 1 A.C. 599 (H.L.1991).

[3] People v. Liberta, 64 N.Y.2d 152, 474 N.E.2d 567, 485 N.Y.S.2d 207 (1984).