MARRIAGE, CONSENT AND SEXUAL VIOLENCE: A CRITICAL APPRAISAL OF INDIA'S MARITAL RAPE EXCEPTION”

Abstract

Marriage has traditionally enjoyed a privileged status in Indian society and in Indian legal thought. Nevertheless, the fact that such marital rape exception is still present in Indian criminal law has become a subject of heated constitutional and human rights controversies over the autonomy of the body, consent, gender equality, and individual liberty. Although rape is actually a crime against the law of India, traditionally the law has traditionally left husbands to go scot free in case of non-consensual sexual intercourse with their wives in marriage on the ground that marriage is equal to a lifetime consent. These assumptions have become more and more discordant with contemporary constitutional jurisprudence that identifies dignity, privacy, and autonomy as basic rights. The present paper is a critical discussion of the development of the marital rape exception, its legal basis and constitutional ramifications in India. It follows a doctrinal research methodology where it examines statutory provisions, judicial precedents, constitutional principles and scholarly literature. The paper claims that the marital exception to rape only entails discrimination of married women and prevents the fundamental principle of consent being indispensable regardless of the marital status. It also measures the judicial progress and other international legal trends to determine whether India ought to reform its criminal law system. As it falls out in the paper, the constitutional values of equality, dignity, and bodily autonomy require revision of the marital rape exception and acknowledgment of non-consensual sexual intercourse in marriage as an offense that should be punished.