Goa court discharges accused, noting that Indian law does not recognise marital rape
2-minute summary
A Sessions Court in Goa discharged a 30-year-old man accused of rape, reiterating that Indian law does not recognize marital rape. The case involved a woman who alleged that the accused had forcible sexual intercourse with her after they completed the first signature of their civil marriage in July 2024, but before their religious marriage. Despite the alleged coercion, the victim proceeded with the civil marriage, which was solemnized in August 2024. The court observed that since the parties were civilly married at the time of the alleged offenses, charges under Section 64 of the Bharatiya Nyaya Sanhita (BNS) for rape could not be sustained. Furthermore, the court ruled that Section 69 of the BNS (sexual intercourse by deceitful means or false promise to marry) was inapplicable because the accused had fulfilled his promise by marrying her. The complaint was filed only after the husband sought to cancel the civil registration. This ruling highlights the ongoing legal gap regarding marital rape in India's criminal jurisprudence, particularly under the newly enacted BNS.
Why it's in the news
A Goa Sessions Court discharged an accused by noting that Indian law does not recognize marital rape under the Bharatiya Nyaya Sanhita (BNS). This ruling has reignited the intense national debate surrounding the criminalization of marital rape and the legal protections available to married women in India.
Background and context
Historically, Exception 2 to Section 375 of the Indian Penal Code (IPC) explicitly exempted marital rape from the definition of rape, provided the wife was not under 18 years of age (originally 15, raised to 18 by the Supreme Court in Independent Thought v. Union of India, 2017). With the replacement of the IPC by the Bharatiya Nyaya Sanhita (BNS) in 2024, this exemption was retained under Section 63 of the BNS (which defines rape, maintaining that sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape). Proponents of criminalizing marital rape argue that the exemption violates Articles 14 (Equality), 15 (Non-discrimination), and 21 (Right to Life and Dignity) of the Indian Constitution, stripping married women of bodily autonomy. Opponents, including some government representations in the past, express concerns over the potential destabilization of the institution of marriage and the misuse of the law. The issue remains pending before the Supreme Court of India, which is hearing a batch of petitions challenging the constitutionality of the marital rape exception.
Constitutional provisions
- Article 14 — Guarantees equality before the law; critics argue the marital rape exception discriminates against married women compared to unmarried women.
- Article 15 — Prohibits discrimination on grounds of sex; the exception is argued to perpetuate gender-based discrimination and patriarchal norms.
- Article 21 — Guarantees the right to life and personal liberty, which includes the right to privacy, dignity, and bodily autonomy as upheld in the K.S. Puttaswamy judgment.
Committees and reports
- Justice J.S. Verma Committee — Recommended the criminalization of marital rape, stating that the relationship between the perpetrator and the victim should be irrelevant in determining consent.
- Law Commission of India (172nd Report) — Recommended deleting the marital rape exception to ensure equal protection of laws for married women.
International organisations
- United Nations Committee on the Elimination of Discrimination against Women (CEDAW) — Has repeatedly urged India to criminalize marital rape and eliminate the legal exception to align with international human rights standards.
Mains practice: Critically examine the constitutional and ethical arguments surrounding the retention of the marital rape exception in India's criminal law framework.
**Introduction**
The transition from the Indian Penal Code (IPC) to the Bharatiya Nyaya Sanhita (BNS) retained the controversial 'marital rape exception' (previously Exception 2 to Section 375 IPC, now under Section 63 BNS). This exception states that sexual intercourse by a man with his wife (not being under 18 years of age) is not rape, raising significant constitutional and ethical concerns.
**Constitutional Arguments Against the Exception**
• **Violation of Article 14:** It creates an arbitrary classification between married and unmarried women, denying married women the legal protection against non-consensual sexual acts enjoyed by unmarried women.
• **Violation of Article 21:** The Supreme Court in *K.S. Puttaswamy (2017)* recognized bodily integrity and privacy as core components of Article 21. Forcing a married woman to submit to non-consensual sex violates her dignity, personal liberty, and right to bodily autonomy.
• **Violation of Article 15:** It discriminates on the basis of gender and marital status, perpetuating the patriarchal notion that marriage implies irrevocable consent.
**Ethical and Social Dimensions**
• **Doctrine of Coverture:** The exception is rooted in the colonial-era doctrine of coverture, where a woman’s legal identity merged with her husband's upon marriage, which is outdated in modern jurisprudence.
• **Justice Verma Committee (2013):** The committee recommended removing the exception, emphasizing that marriage does not imply a permanent surrender of sexual consent.
• **Arguments for Retention:** Opponents of criminalization argue it could destabilize the institution of marriage, lead to easy harassment of husbands, and that civil remedies (like judicial separation) already exist.
**Conclusion**
To ensure true gender justice, India must reconcile its criminal laws with constitutional guarantees. Criminalizing marital rape, accompanied by strict evidentiary safeguards to prevent misuse, is essential to protect the dignity and bodily autonomy of married women.
Prelims practice questions
Q1. With reference to the Bharatiya Nyaya Sanhita (BNS), consider the following statements: 1. Section 64 of the BNS deals with the punishment for rape. 2. Section 69 of the BNS addresses sexual intercourse by employing deceitful means or making false promises to marry. 3. The BNS has completely criminalized marital rape for wives of all ages. Which of the statements given above is/are correct?
- 1 and 2 only
- 2 and 3 only
- 1 and 3 only
- 1, 2 and 3
Answer: A. Statements 1 and 2 are correct. Section 64 of the BNS prescribes punishment for rape, and Section 69 deals with sexual intercourse by deceitful means (like false promise to marry). Statement 3 is incorrect because the BNS retains the marital rape exception for wives who are not under 18 years of age.
Q2. The landmark Supreme Court judgment in 'Independent Thought v. Union of India' (2017) is primarily associated with which of the following issues?
- The constitutionality of the National Judicial Appointments Commission
- The decriminalization of homosexuality under Section 377
- The right to privacy as a fundamental right
- The age of consent and marital rape exception for minor wives
Answer: D. In Independent Thought v. Union of India (2017), the Supreme Court ruled that sexual intercourse by a man with his wife, who is below 18 years of age, is rape, thereby reading down the marital rape exception which previously set the age limit at 15 years.
Q3. Which of the following committees recommended the criminalization of marital rape in India?
- Kasturirangan Committee
- Sarkaria Commission
- Justice Malimath Committee
- Justice J.S. Verma Committee
Answer: D. The Justice J.S. Verma Committee, set up in the wake of the 2012 Delhi gang-rape case, recommended that the law should fitly recognize that marital status does not negate consent, thereby advocating for the criminalization of marital rape.
Revision flashcards
- What is the status of marital rape under the Bharatiya Nyaya Sanhita (BNS)? It is not recognized as a criminal offense (rape) if the wife is 18 years of age or older, retaining the exception previously found in the IPC.
- Which section of the BNS deals with sexual intercourse by employing deceitful means or false promise to marry? Section 69 of the BNS.
- What was the key recommendation of the Justice J.S. Verma Committee (2013) regarding marital rape? It recommended criminalizing marital rape by removing the marital exception, stating that consent must be voluntary and marital status is irrelevant.
- Which fundamental rights are argued to be violated by the marital rape exception? Articles 14 (Equality), 15 (Non-discrimination), and 21 (Right to Life, Dignity, and Bodily Autonomy).
- How did the Supreme Court alter the marital rape exception in the 'Independent Thought' (2017) case? It ruled that sexual intercourse with a wife under 18 years of age constitutes rape, effectively raising the exception's age limit from 15 to 18.