[Answered] Critically analyze the marital rape exception as a colonial legacy rooted in patriarchal notions of female identity. Evaluate whether the pursuit of ‘matrimonial sanctity’ justifies the infringement of a woman’s fundamental right to bodily autonomy and dignity.

Introduction

Despite constitutional guarantees of equality and dignity, Indian criminal law retains the marital rape exception, a colonial remnant that continues to deny bodily autonomy to married women, contradicting constitutional morality and human rights.

Colonial Legacy of the Marital Rape Exception

1. Victorian Patriarchal Roots: The exception originated in 19th-century English common law, treating wives as husbands’ property with irrevocable sexual consent.
2. Continuation in Indian Law:Carried from the Indian Penal Code to Section 63 of the Bharatiya Nyaya Sanhita without substantive reform.
3. Doctrine of Coverture: Presumed marital unity erased a woman’s independent legal identity.

Patriarchal Construction of Female Identity

1. Marriage as Sexual Contract: Law assumes perpetual consent, subordinating women’s agency to marital status.
2. Gendered Power Asymmetry:Reflects control over female sexuality as central to patriarchal family structures.
3. Normalization of Domestic Sexual Violence: Reinforces silence by framing abuse as a “private” marital matter.

Constitutional Incompatibility

1. Article 14 – Equality Before Law: Differential treatment between married and unmarried women is manifestly arbitrary.
2. Article 21 – Life and Personal Liberty: Supreme Court jurisprudence links dignity, privacy, and bodily autonomy as core rights.
3. Transformative Constitutionalism: Exception contradicts evolving constitutional morality prioritising individual agency.

Empirical Evidence of Harm

1. Magnitude of the Problem: NFHS-5 shows 83% of women reporting sexual violence identified their husbands as perpetrators.
2. Invisible Victimhood: Criminal law denial leads to under-reporting and institutional neglect.
3. Case Reality: Separated or deserted women face forced “conjugal claims” without criminal remedy.

Judicial and Committee Positions

1. Justice Verma Committee (2013): Justice Verma Committee unequivocally recommended criminalising marital rape.
2. Supreme Court Trends: Judgments on privacy (Puttaswamy), sexual autonomy (Independent Thought), and consent weaken the doctrinal basis of the exception.
3. Judicial Hesitation: Despite progressive rulings, final legislative correction remains pending.

‘Matrimonial Sanctity’ Argument: A Critical Appraisal

1. False Dichotomy: Protecting marriage cannot mean sacrificing individual dignity.
2. Consent as Continuous: Marriage does not extinguish the right to say “no”.
3. Violence vs Stability: Criminalising marital rape strengthens, not weakens, ethical marital relationships.

International Human Rights Obligations

1. CEDAW Commitments: CEDAW mandates elimination of discrimination within marriage.
2. Comparative Jurisdictions: Over 150 countries, including the UK, criminalise marital rape.
3. Constitutional Mandate: Articles 51 and 253 support harmonisation with international law.

Misuse Argument: A Weak Justification

1. Speculative Fear: Misuse exists in all criminal laws, including dowry and domestic violence statutes.
2. Due Process Safeguards: Investigation standards, judicial scrutiny, and evidentiary thresholds address misuse.
3. Rights Cannot Be Conditional: Potential abuse cannot justify denial of fundamental protection.

Way Forward

1. Legislative Repeal of the Exception: Explicit criminalisation with gender-neutral safeguards.
2. Victim-Centric Procedures: Trauma-informed policing and judicial processes.
3. Societal Reorientation: Education on consent, equality, and marital ethics.

Conclusion

As Martha Nussbaum argues in Sex and Social Justice, dignity demands bodily sovereignty; preserving ‘marital sanctity’ by legalising sexual violence betrays constitutional morality and India’s commitment to gender justice.