Recently, in Gorakhnth Sharma v. State of Chhattisgarh, the Chhattisgarh High Court acquitted a man, who allegedly forced anal intercourse on his wife resulting in fatal injuries, of all charges under the Indian Penal Code 1860 (“IPC”), including rape. Among other considerations, it relied upon the Marital Rape Exemption (“MRE”) under Section 375 of the IPC, which states that sexual acts/intercourse by a man with his adult wife is not rape. Despite being at the centre of recent litigation, including a pending challenge regarding its constitutional validity before the Supreme Court of India (“Supreme Court”), the MRE has been retained under Section 63 of the new penal law, the Bharatiya Nyaya Sanhita 2023 (“BNS”). State actors, including the Supreme Court and the Central Government, have resisted criminalizing marital rape, the latter even deeming it to be ‘excessively harsh’.  In this blog post, we assess the constitutional invalidity of the MRE and propose victim-centred reforms to the extant criminal law framework.

As demonstrated by existing scholarship, the MRE violates the fundamental rights of married women guaranteed under Article 14 (right to equality) and Article 21 (right to dignified life) of the Constitution of India (“Constitution”). By refusing to convict husbands, the extant legal framework disregards the reality of intimate partner violence and reinforces archaic Victorian stereotypes, which deem women to be subordinate within marriage and presume their irrevocable consent within marriage. In the context of decriminalization of sodomy, the Supreme Court has observed how penal provisions criminalizing consensual sexual intercourse between homosexual adults effectively granted state-sanctioned legitimacy to discrimination against queer communities grounded in gender stereotypes. In our opinion, the MRE similarly lends the authority of the Indian State to intimate partner violence and non-consensual sexual intercourse/acts, perpetuates patriarchal stereotypes about married women, and dehumanize them. In view of the notions of ‘substantive equality’ and ‘anti-stereotyping’ underpinning the Constitution, laws premised on such stereotypes are constitutionally impermissible.

In addition to discarding the MRE, it is essential to introduce reforms to criminal law. At present, criminal law provisions concerning rape, such as Section 63 of the BNS (previously Section 375 of the IPC), are based on the absence of ‘consent’. These provisions assume that a woman is always be able to unequivocally express or withhold her consent. While such provisions align with years of feminist advocacy to recognise women as subjects of law and affirm their agency, they ignore the lived realities and vulnerability of married women, which arises from their bodily, social, and relational existence. Many victims of marital rape are situationally and pathologically vulnerable due to their abusive marriages, their interpersonal relationships, and the sustained control exercised by their husbands, which adversely affect their autonomy and exacerbate their powerlessness. As accounted by existing literature, they experience a ‘continuum’ of other violent acts, including physical, sexual, and financial abuse. Psychological research indicates how interpersonal violence involves ‘a method of continual and enforced domination’.

Considering this, not only should marital rape be included within the definition ‘rape’ under the IPC/BNS, but also be deemed to be a form of rape, wherein the man is ‘in a position of control or dominance over a woman’ punishable under Section 64(2)(j) of the BNS (previously Section 376(2)(k) of the IPC). In our opinion, such a classification will have two important implications. First, it will capture the lived realities of married women facing intimate partner violence, their vulnerable position, and the nature of domination experienced by them. Second, for rape cases of the nature enumerated under Section 64(2) of the BNS (previously Section 376(2) of the IPC), the burden of proof is shifted to the accused. The ‘presumption as to the absence of consent’, provided under Section 120 of the Bharatiya Sakshya Adhiniyam 2023 (previously Section 114A of the Indian Evidence Act 1872), states that the courts ‘shall’ presume that the woman did not consent, if she states so in her evidence. Accordingly, instead of requiring the victim to prove the absence of consent beyond reasonable doubt, this presumption requires the accused to rebut the presumption. Given the extremely private nature of the acts and the difficulty in gathering adequate evidence in cases of marital rape, such a presumption in favour of victims of marital rape will significantly assist them in meeting the burden of proof and in turn, protect her fundamental rights more rigorously.