Arushi Sharma, Assistant Professor, Oriental University, Indore
Varalika S. Parashar, Assistant Professor, Oriental University, Indore
Ms. Sunanda Upadhyay, Assistant Professor, Oriental University, Indore
ABSTRACT
The legal exception for marital rape has long been a contentious issue globally, with several countries criminalizing the act to uphold human dignity and equality. Canada, South Africa, and Australia have abolished the common law "marriage rape immunity," recognizing that such protection for husbands is incompatible with modern legal principles. The European Commission of Human Rights and the Justice Verma Committee in India have emphasized the need for legislative intervention to address marital rape, highlighting its violation of fundamental human rights. In India, however, marital rape remains legally protected under the Bharatiya Nyaya Sanhita (BNS) and its predecessor, the Indian Penal Code (IPC), despite its contravention of constitutional rights. Exception 2 of Section 63 of the BNS, under scrutiny in the ongoing Supreme Court hearings, raises concerns about its violation of Articles 14, 15, 19, and 21 of the Indian Constitution. These articles collectively ensure equality, prohibit discrimination, guarantee freedom of speech, and protect life and personal liberty. The immunity granted to husbands perpetuates gender inequality, undermines female sexual autonomy, and denies women the right to seek justice for sexual violence within marriage. This archaic exception reflects entrenched patriarchal norms that dehumanize women and disregard their bodily autonomy. The ongoing case of RIT Foundation v. Union of India and similar petitions underscore the urgent need for reform to align Indian law with international human rights standards. A favorable verdict would signify a monumental shift toward gender equality, affirming a woman’s right to consent and bodily integrity in marriage while dismantling historical prejudices in law.
Keywords: Marital Rape, Indian Constitution, Gender Equality, Bodily Autonomy, Patriarchy, Justice Verma Committee, Bharatiya Nyaya Sanhita, Fundamental Rights
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