Adv. Varun Singh Thapa, Senior Associate, Aikyam Law Offices
ABSTRACT
Marital rape remains a pervasive yet overlooked issue in India, perpetuated by legal and societal frameworks that fail to recognize women’s autonomy within marriage. Section 63 of the Bharatiya Nyaya Sanhita, mirroring Section 375 of the Indian Penal Code, exempts husbands from prosecution for non-consensual intercourse with wives over 18, embedding an outdated presumption of perpetual consent. This legal gap starkly contrasts with over 100 countries, including the United Kingdom, Canada, South Africa, and Nepal, which have criminalized marital rape as a violation of fundamental rights. Drawing from the Chhattisgarh High Court’s ruling in Gorakhnath Sharma v. State of Chhattisgarh (February 2025), where a husband was acquitted despite violent sexual acts causing his wife’s death, this article examines how India’s laws undermine constitutional guarantees of equality (Article 14) and personal liberty (Article 21). While global precedents demonstrate effective criminalization, India’s socio-cultural norms— reinforced by patriarchal attitudes and inadequate legal remedies—continue to normalize coercion within marriage. This perpetuation of gender inequality, evidenced by India’s lagging rank in the Global Gender Gap Report and its obligations under CEDAW, calls for urgent legislative reform to align with principles of bodily autonomy and justice.
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