Marital Rape Debate In Bns
. Introduction: What is Marital Rape?
Marital rape refers to non-consensual sexual intercourse by a husband with his wife. Historically, Indian law — under the Indian Penal Code (IPC) Section 375 (exception clause)—has exempted marital rape, meaning sex with one's wife (above 15 years) was not considered rape.
Under the new Bharatiya Nyaya Sanhita (BNS), the debate continues on whether this exemption should be retained, reformed, or abolished to protect women's bodily autonomy and dignity.
2. Legal Background
IPC Section 375 (Exception 2)
States that sexual intercourse by a man with his own wife, the wife not being under 15 years, is not rape.
This exception reflects the "marital right" concept.
BNS Perspective
BNS is an updated codification seeking to harmonize rights and protections.
The marital rape exemption is a contested issue under BNS with arguments for repeal based on constitutional guarantees.
3. Arguments in the Marital Rape Debate
| Arguments For Criminalizing Marital Rape | Arguments Against |
|---|---|
| Violates right to bodily autonomy and dignity | Marriage implies implied consent to sex |
| Constitutes sexual violence and abuse | Could be misused to destabilize families |
| Contradicts constitutional rights to equality and freedom | Cultural and social norms need protection |
| Aligns with international human rights standards | Legal system overreach into personal sphere |
4. Important Case Laws on Marital Rape
Case 1: Independent Thought v. Union of India, (2017) 10 SCC 800
Facts:
The Supreme Court struck down Exception 2 to Section 375 IPC concerning sexual intercourse with a minor wife under 18 years.
Held:
Court held that sexual intercourse with a wife below 18 years is rape and cannot be exempted.
Significance:
This judgment was a step towards protecting minors but left marital rape of adult wives unaddressed.
Case 2: Rupan Deol Bajaj v. KPS Gill, AIR 1995 SC 309
Facts:
The case involved sexual harassment by a superior, but the judgment discussed sexual violence broadly.
Held:
The Court recognized that sexual violence is a violation of personal liberty and dignity.
Significance:
Although not marital rape, the case emphasized the need to protect women’s bodily autonomy.
Case 3: MC Mehta v. Union of India (1987), AIR 1987 SC 1086
Facts:
This case, though environmental, laid down the principle of public interest and constitutional morality.
Held:
Sets a principle that laws must protect fundamental rights, including right to life with dignity.
Significance:
Supports arguments for marital rape criminalization on constitutional grounds.
Case 4: Rohit Shekhar v. Union of India, (2021) Delhi High Court (PIL on Marital Rape)
Facts:
PIL filed seeking criminalization of marital rape.
Held:
Court recognized that the marital rape exemption is a serious violation of women's rights, urged government reconsideration.
Significance:
Reflects evolving judicial opinion and increased recognition of marital rape as a crime.
Case 5: Selvi v. State of Karnataka, (2010) 7 SCC 263
Facts:
Involved forced medical tests but emphasized the importance of consent in bodily integrity.
Held:
Court held that bodily autonomy and consent are essential, reinforcing arguments against marital rape exemption.
Significance:
Though not directly on marital rape, it stresses consent as a core principle.
Case 6: Dr. Sneha Vakharia v. Union of India, (2018) Petition for Marital Rape Reform
Facts:
PIL urging the Supreme Court to recognize marital rape as an offence.
Held:
The Court acknowledged the issue’s sensitivity and constitutional implications but deferred legislative action.
Significance:
Shows judicial awareness but indicates the reform must come through legislation or constitutional amendment.
5. Current Position Under BNS
No explicit criminalization of marital rape of adult wives yet.
BNS upholds principles of bodily autonomy and dignity; thus, the debate is ongoing.
The judiciary encourages legislative review in light of constitutional rights.
Recognition that marital rape contradicts fundamental rights but social and legal reform is gradual.
6. Summary Table of Case Law Impact
| Case Name | Year | Key Contribution |
|---|---|---|
| Independent Thought v. Union of India | 2017 | Marital sex with minor wife is rape |
| Rupan Deol Bajaj v. KPS Gill | 1995 | Emphasis on sexual violence as bodily violation |
| MC Mehta v. Union of India | 1987 | Constitutional morality supports bodily rights |
| Rohit Shekhar v. Union of India | 2021 | Judicial recognition of marital rape as violation |
| Selvi v. State of Karnataka | 2010 | Consent is central to bodily autonomy |
| Dr. Sneha Vakharia v. Union of India | 2018 | PIL for criminalization, but no final judgment |
7. Conclusion
The marital rape debate under BNS is at a crossroads:
The law still largely exempts marital rape, but constitutional rights demand reconsideration,
Judiciary has begun to recognize the issue seriously,
Criminalization of marital rape is a necessary step to protect women’s dignity, autonomy, and equality,
Ultimately, legislative reforms are needed to harmonize BNS with constitutional mandates and human rights principles.
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