INTRODUCTION
It is believed that “the marriages are arranged in heaven, but are solemnised on earth” as marriages are pre-ordained by God.[1] Marriage is a socially approved form of association that results in rights and obligations among the participants and their children and relatives. Marriage can be described variously from culture to culture, and through the ages, there have been many conflicting definitions of marriage that have been advanced in an attempt to reflect the variety of wedding traditions prevalent in civilisations. Edward Westermarck[2], an anthropologist, defined marriage as a relation of one or more men to one or more women that is recognised by custom or law. Gillin and Gillin have said marriage is a socially approved way of establishing a family of procreation. However, this traditional view of marriage as a divine union does not capture the reality of modern relationships. While marriage entails respect and love, it is, however, a legal presumption of consent. The practice of marriage in India is an excellent illustration of the patriarchal nature of society. This is because in the practice of marriage in India, the male has the right to claim the female’s body for any sexual relationship at will. Such an act, popularly known as ‘Marital Rape’, has been made an offence in seventy-seven countries around the world, according to Amnesty International Data. However, in India, it still serves as an exception to the offence of rape.
IMPLIED CONSENT AS LEGAL FICTION: CONCEPT OF MARITAL RAPE
The offence of marital rape is one of the most gruesome and brutal crimes perpetrated against women. Marital violence has been recognised universally as a severe public health concern with disturbing consequences affecting the physical, reproductive, sexual, and psychological health of women.[3] Usually, in every case of rape, the Prosecutrix is discriminated against and made to feel as if it is she who is the “criminal”, even though it is not her fault. Marital rape is occasionally given the legitimacy or validity of other forms of sexual violence, but it can be just as devastating.[4]
The institution of marriage is considered sacrosanct within the cultural framework of India, and its spell has bewitched not only the law but even the public mindset with respect to marital rape. Anyone who brings into question or shakes the sanctity of marriage is doomed to face social stigmatisation. When a woman claims sexual violence against her spouse, she may encounter social stigmatisation, non-recognition, or even legal objections to the allegation, owing to the belief that sexual access to her body was the right of her husband under the terms of marriage.
Rape is the most underreported of all the sexual offences in the world. It also occurs in India because there is an explicit legal loophole where husbands who have raped their wives are exempted from prosecution under Exception 2 to Section 63 of the BNS, 2024. The rationale for the exemption from criminal responsibility for raping one’s wife is based on the old doctrine of marriage of common law dating back to before the 17th century, as stated by English common lawyer Sir Matthew Hale, which posited that through marriage, women give permanent consent to sexual intercourse. It is also known as the theory of Implied Consent, where a woman becomes devoid of all her rights over her mind as well as her body.[5] The ancient rule that still pervades contemporary legal reasoning in India through the BNS. Section 63 of the BNS defines rape in explicit terms, but has an exception to the extent that sexual intercourse by a man with his wife, wife not being below eighteen years of age, is not rape.[6]
CONSTITUTIONAL ANALYSIS
The constitutionality of the Marital Rape can be examined with respect to it violating of-
Right to Equality – The Right to equality, enshrined under Article 14, clearly states that every citizen of the country is guaranteed the fundamental right of equality before law and equal protection of laws.[7] The court has interpreted the provision as “equals should be treated equally,” which means that there is room for reasonable classification if the people in question belong to a different class.[8] In order for any clause under Article 14 to be valid, there needs to be an intelligible differentia; this means that there needs to be a purpose behind the differentiation being made. The second requirement is that there needs to be a relationship to the objective being pursued. The majority of people who are in favour of retaining the second exception to section 63 of the BNS say that married women are a different class of people than unmarried women and that this is a reasonable classification under article 14 of the Constitution. This kind of argument is not only wrong, but it also goes against progress.
Right to Life and Personal Liberty – Article 21’s right to life includes the right to privacy, dignity, and control over one’s own body. The Supreme Court acknowledged privacy as a fundamental right in Justice K.S. Puttaswamy v Union of India[9], underscoring individual autonomy in personal decision-making. The implied consent assumption in marriage directly violates this autonomy level. The law deprives married women of the right to bodily autonomy and restricts them to an apathetic state in marriage. A framework like this cannot co-exist with dignity and personal liberty as granted by the Constitution. In recent years, the Delhi High Court and the Supreme Court have heard a slew of petitions against Marital Rape, but the attitude of the judiciary has not been benign towards the cause of married women. It is pertinent to note that the Delhi High Court has been hearing a series of petitions filed challenging the constitutionality of Marital Rape. It has been argued that the law discriminates against married women who are sexually assaulted by their husbands.[10] However, the Government has responded by saying that criminalising marital rape would destabilise the institution of marriage and that it would become an easy tool in the hands of wives to harass their husbands.[11]
CONCLUSION
Implied consent in marriages is not only obsolete but also completely contrary to the concept of constitutional morality. This implies that once given, consent loses its significance forever and takes away the freedom of choice of married women, which is available to everyone else. Not only will it institutionalise an inequitable system, but it will also provide a license for violence in marriage under the pretence of marital rights.
It would be naïve and unprofessional to discuss problems related to misuse, difficulties in establishing evidence, and protection of the sanctity of marriage, at the cost of the rights of a woman. Marriage cannot be maintained by silencing the violation of her bodily autonomy. On the contrary, a change in the paradigm is required for what marriage represents, taking dignity and equality, and consent into consideration.
In essence, marriage must not be a cause for threats, nor must it be invoked as a means of avoiding any form of retaliation. To uphold the illusion that there was some kind of implicit consent is unfair, whereas to strip this veil is to restore one’s integrity.
Author: Sanchi Soni (Osmania University College of Law, Hyderabad)
References:
[1] Paras Diwan and Peeyushi Diwan, Hindu Law 548 (Wadhwa & Company, Allahabad, 2nd edn., 1995).
[2] Edvard Westermarck: The History of Human Marriage, Macmillan, London (1891)
[3] Painter and Farrington
[4] “The Dark Consequences of Marital Rape”, The American Journal of Nursing, vol. 89, no. 7, 1989, pp. 946– 949. JSTOR, by Campbell, Jacquelyn C., and Peggy Alford.
[5] Sir Matthew Hale, “History of the Pleas of the Crown” (1736) 1 Hale PC 629
[6] Bharatiya Nyaya Sanhita § 63, Exception 2 (2024)
[7] Constitution of India, Art. 14
[8] Indra Sawhney v Union of India AIR 1993 SC 477.
[9] AIR 2017 SC 4161
[10] Meera Emmanuel, “Marital Rape Case: Marriage does not mean all time Consent for Sexual Relations, Delhi HC.”
[11] RIT Foundation v Union of India, W.P. (C) No. 284/2015
