The Marital Shield: Reconsidering the Boundaries of Consent and Constitutional Equality Under the Bharatiya Nyaya Sanhita
DOI:
https://doi.org/10.31305/rrijm.2026.v11.n08.011Keywords:
Marital Shield, Consent, Constitutional Equality, PWDVA, POCSOAbstract
This paper traces the evolution of the marital rape exception in criminal law, from the “Indian Penal Code, 1860 to the Bharatiya Nyaya Sanhita, 2023 (BNS),” and examines how the exception has been carried forward with only a change to the applicable age threshold. Although non-consensual sexual conduct within marriage is increasingly recognised as a form of intimate-partner violence, Indian criminal law continues to withhold from married women the fortification against sexual ferocity that it extends to unmarried women, and the civil remedy available under the “Protection of Women from Domestic Violence Act, 2005 (PWDVA)” does not fill this gap. The partial intervention of the Supreme Court in Independent Thought v. Union of India and the split verdict in RIT Foundation v. Union of India have left the constitutional status of the exception unresolved. Adopting a doctrinal method, the paper examines the IPC, the BNS, the PWDVA, the “Protection of Children from Sexual Offences Act (POCSO),” and the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”), alongside relevant judicial precedent and comparative frameworks. “It argues that the exception is arbitrary and discriminatory under Articles 14, 15 and 21 of the Constitution, drawing on Joseph Shine v. Union of India and Justice K.S. Puttaswamy v. Union of India.” The paper also engages with the principal objections to criminalisation, the risk of procedural misuse analogous to Section 498A IPC, evidentiary difficulty under the BSA, and Parliament’s deliberate departure from the recommendations of the Justice Verma Committee (2013) and highlights the resulting incoherence between the PWDVA, which treats non-consensual marital intercourse as “sexual abuse”, and the BNS, which does not treat it as a crime. It concludes that the exception for matrimonial rape under Section 63 of the BNS is unconstitutional and recommends its repeal, together with the procedural safeguards necessary to align Indian law with international human-rights norms and constitutional guarantees.
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