Marital Rape In India: Constitutional and Legal analysis

This research paper is a critical analysis of the marital rape exception in India as it was provided under section 375, exception 2 of the Indian Penal Code, 1860. It is retention of section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 that continues to afford legal protection to husbands against non-consensual sexual acts with their wives. Further, this paper defines marital rape and various types of marital rape. The core of the research talks about rigorous Constitutional Analysis, testing the exception against the "golden triangle" of Articles 14, 15, and 21 of the Constitution of India. It argues that the exception creates an arbitrary classification between married and unmarried women, which violates the principles of equality and the fundamental right to bodily autonomy and dignity. Further, this paper also explains the position of marital rape in different countries. Furthermore, the paper provides a Legal Analysis of the current "alternatives" like the Domestic Violence Act, the Hindu Marriage Act, 1955, and other civil remedies, arguing that the criminal remedies are inadequate for addressing sexual violence against married women. Also, this paper provides some arguments against the criminalisation of Marital Rape.