Marital Rape

• Marital rape refers to forced sexual intercourse or sexual assault by one spouse against the other without consent.
• In India, marital rape between adult spouses is generally not recognised as the offence of rape under the statutory marital-rape exception.
• Exception for separated spouses  where a husband and wife are living separately, non-consensual sexual intercourse by the husband is treated differently under the law.

Legal Position

• IPC Section 375: The former IPC contained an exception excluding sexual intercourse by a man with his wife, subject to the statutory age condition.
• BNS Section 63: The Bharatiya Nyaya Sanhita, 2023 retains the marital-rape exception for an adult wife, while the age threshold has been aligned with the legal protection of minors.
• Protection from Domestic Violence Act, 2005: Even though marital rape is not separately recognised as rape between adult spouses, sexual abuse within marriage can attract remedies under domestic-violence law.

Important Judicial Rulings

• Independent Thought v. Union of India (2017): The Supreme Court removed the protection for sexual intercourse with a wife below 18 years, bringing the exception in line with child-protection law.
• Articles 14, 15 & 21: The judgment emphasised equality, non-discrimination, life, dignity and bodily integrity.
• K.S. Puttaswamy v. Union of India (2017): Recognised privacy and individual autonomy, including decisional and bodily autonomy, as constitutionally protected interests.
• Navtej Singh Johar v. Union of India (2018): The Supreme Court decriminalised consensual homosexual relations between adults by reading down Section 377 IPC; it is relevant to the broader constitutional principle of sexual autonomy and dignity.

Government’s Position

• The Union Government has argued that although a husband cannot violate his wife’s consent, treating every such violation under the offence of rape could be considered excessively harsh and disproportionate.
• The issue involves balancing women’s bodily autonomy and dignity with concerns regarding marriage, evidentiary standards and possible misuse of criminal law.

Prelims MCQs

Which of the following Articles of the Constitution are particularly relevant to the judicial debate on marital rape?

1. Article 14
2. Article 15
3. Article 21

Select the correct answer using the code below:

A. 1 and 2 only
B. 2 and 3 only
C. 1 and 3 only
D. 1, 2 and 3

Answer: D. 1, 2 and 3

Explanation:

• Article 14: Equality before law.
• Article 15: Prohibition of discrimination, including on grounds of sex.

Article 21: Right to life and personal liberty, including dignity, privacy and bodily autonomy.