No Exception To Consent: Reassessing Marital Rape Laws For The 21st Century

Namita Dadhich, B.COM LL.B. (H), Amity University, Jaipur, Rajasthan

Shresth Upadhyaya, B.B.A. LL.B. (H), Amity University, Jaipur, Rajasthan

ABSTRACT

Marital rape, also known as conjugal assault or partner rape, is the act of engaging in sexual contact with one’s spouse without his or her express and voluntary consent. It is a form of sexual violence and domestic abuse that occurs within the confines of a marriage or close relationship. Marital rape is an infringement on a person’s bodily autonomy, personal boundaries, and human rights. It is critical to remember that consent is a must for any sexual connection, including marriage. Even inside a marriage, neither spouse has a natural right to the other's body. Consen’ must always be freely given, informed, enthusiastic, and revocable. Coercion, manipulation, or any other form of force undermines the concept of genuine consent. The Indian Penal Code of 1860 does not make marital rape a felony. There are several reasons for this, which may be found in several Law Commission documents, Parliamentary debates, and judicial opinions. The arguments range from protecting the institution of marriage’s sacredness to current legal alternatives. In this paper, we demonstrate how these grounds for not criminalizing marital rape are flawed. Based on a review of Article 14 of the Indian Constitution, we contend that the marital rape exception clause in the Indian Penal Code, 1860, is unconstitutional. Furthermore, we notice a dearth of other remedies for a woman to seek redress if her spouse has harmed her. Finally, we believe that riminalizing marital rape is very necessary. We indicate a model for the same by recommending changes to criminal law as well as acknowledging the changes required in civil law, notably divorce law.

Keywords: Rape, Marital Rape, Indian Constitution, Domestic abuse, Consent, Marriage