The purpose of law is to address societal problems, not to create them. However, in a diverse and complex society like India, legal frameworks often struggle to bridge the gap between tradition and modernity. Indian society continues to face challenges with inter-group and inter-caste marriages, as such unions often evoke fear, resistance, and mistrust among communities. While marriage is fundamentally based on consent and mutual negotiation, rape is a violent and forceful act that violates personal autonomy. Marriage also provides the option of dissolution if conflicts arise, but when communication breaks down or negotiations fail, it can lead to extramarital issues or strained relationships. While open communication is vital, overly formalizing personal relationships may weaken the institution of marriage. In India, the family remains a primary support system, even as societal structures evolve. Unlike in Western societies, where marriage as an institution has declined and divorce rates have risen, India still relies heavily on its family systems for stability. Yet, the state has often failed to adequately support individuals, leaving families to bear the responsibility. The ‘marital rape exception,’ rooted in the outdated notion that a wife irrevocably consents to her husband upon marriage, underscores the need for legal and societal reforms to ensure justice and equality within marital relationships. Marriage is often considered a sacred institution, a union built on love, trust, and mutual respect. It is a social and legal contract that binds two individuals in a lifelong partnership, with shared responsibilities and privileges. However, for this institution to thrive, it must adapt to changing societal norms and ensure that the rights and dignity of both partners are upheld. The evolving dynamics of marriage in India highlight the need for a balanced approach that respects tradition while embracing progress, ensuring that the institution remains a source of strength and support for individuals and society as a whole. Meanwhile, societal shifts are evident in the rising divorce rates in both countries. In the U.S., the divorce rate stands at approximately 40-50% of marriages, according to the American Psychological Association (APA), while in India, divorce rates are significantly lower but steadily increasing, particularly in urban areas, as reported by the National Family Health Survey (NFHS-5).
The Legal Framework: Section 63 BNS and the Marital Rape Exception
Marital rape remains a contentious issue in legal and societal discourse, particularly due to the challenges in proving consent within the confines of marriage. Unlike other forms of sexual violence, marital rape often occurs in private settings, making it difficult to establish evidence of non-consent. This complexity raises concerns about the potential for frivolous cases, where accusations might be misused for personal vendettas or leverage in marital disputes. Section 63 Exception (2) Bharatiya Nyaya Sanhita defines rape as a criminal offense but includes an exception that states, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under Eighteen years of age, is not rape.” This exception has been criticized as a relic of patriarchal norms that deny women autonomy over their bodies. However, it is essential to understand the historical and cultural context in which this provision was enacted. India is a diverse country with a complex social fabric, where marriage is not just a union of two individuals but also a union of families and communities. The institution of marriage carries significant cultural, religious, and social weight, and any legal intervention must consider these factors. The exception to Section 63 of BNS reflects the traditional view that marriage implies mutual consent to sexual relations, and criminalizing marital rape could have far-reaching implications for the stability of marital relationships.
Judicial Interpretation: Balancing Marital Sanctity and Gender Justice
Indian courts have consistently sought to balance the sanctity of marriage with principles of gender justice, often emphasizing the need to harmonize individual rights with societal interests. In State of Maharashtra v. Madhukar Narayan Mardikar (1991), the Supreme Court affirmed the fiduciary nature of marital relationships, rooted in trust and mutual respect, while cautioning against excessive legal intrusion into private unions to preserve marital harmony. Similarly, the Andhra Pradesh High Court in Saretha v. T. Venkata Subbaiah (1983) stressed the foundational role of marriage in Indian society, advocating for a culturally contextualized legal approach rather than uncritically adopting Western notions of individual rights. The Supreme Court, in Aruna Shanbaug v. Union of India (2011), underscored the necessity of aligning personal autonomy with societal values, framing the law as a reflection of the ‘collective conscience’ a principle invoked to argue that criminalizing marital rape risks destabilizing this balance. Practical concerns were further highlighted in Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018), where the Gujarat High Court acknowledged the evidentiary challenges and potential misuse of marital rape laws, advocating for a cautious legal framework that addresses genuine grievances without eroding marital institutions. Collectively, these judgments reflect a judicial reluctance to dismantle the marital rape exception, prioritizing societal stability and cultural specificity over radical legal reform.
The Social and Cultural Context of Marriage in India
In India, marriage is not merely a legal contract but a sacred institution imbued with profound social and cultural significance, where sexual relations are often viewed as an inherent aspect of the marital bond. Criminalizing marital rape could be perceived as undermining this institution, potentially provoking resistance from conservative segments of society. The Indian legal system already addresses gender-based violence through mechanisms like the Protection of Women from Domestic Violence Act, 2005, and Section 498A of the IPC, which provide remedies for domestic abuse without explicitly criminalizing marital rape, thereby balancing women’s rights with the preservation of marital sanctity. Critics argue that the marital rape exception perpetuates gender inequality, but such perspectives often overlook the socio-cultural complexities and practical challenges involved. For instance, while gender equality is a fundamental principle, its pursuit must align with India’s unique cultural context to avoid backlash, as abrupt legal reforms could be perceived as an assault on traditional values. Additionally, concerns about false accusations are valid, given the potential misuse of domestic violence laws, which could strain the already overburdened legal system. Instead of introducing potentially contentious legal provisions, a more sustainable approach would involve fostering gender equality through education and awareness, ensuring that reforms are both socially acceptable and effective in addressing systemic issues. Criminalizing marital rape, they argue, risks destabilizing this institution and opening the door to false accusations in a legal system already strained by delays and misuse of laws like Section 498A (dowry harassment). The challenge lies in addressing violence without undermining marital trust or disregarding cultural sensitivities.
The Way Forward
The debate on marital rape underscores the necessity of a balanced approach that upholds individual rights while safeguarding the institution of marriage, emphasizing the importance of addressing the root causes of gender-based violence, such as patriarchal norms, lack of education, and economic dependence, rather than solely focusing on criminalization. Promoting gender equality through education and awareness campaigns is crucial, as these initiatives can foster a deeper understanding of consent and sexual rights, empowering women to assert their autonomy within marriage. Simultaneously, strengthening existing legal frameworks, such as the Protection of Women from Domestic Violence Act and Section 498A of the IPC, can provide effective remedies for abuse without destabilizing marital institutions, provided these laws are implemented rigorously and efficiently. Additionally, offering counselling and support services to couples experiencing marital discord can address underlying issues that contribute to sexual violence, with mediation and conflict resolution mechanisms playing a vital role in preserving marital harmony and preventing abuse. This multifaceted approach ensures that societal attitudes evolve, legal protections are robust, and marital relationships are nurtured, creating a more equitable and harmonious framework for addressing marital rape.
