Exception to marital rape undermines autonomy, equality of women: Derek O'Brien

The exception granted to marital rape under section 63 of the Bharatiya Nyay Samhita (BNS) undermines the autonomy and equality of women, Trinamool Congress (TMC) Rajya Sabha leader Derek O'Brien said on Sunday, 9 February.

Exception 2 to section 63 of the BNS (previously under section 375 of the Indian Penal Code), which defines rape, rules out forced sexual intercourse by a man with his wife, aged over 18 years, as rape.

On Friday, the senior TMC leader introduced a private member's Bill in the Rajya Sabha seeking to remove this exception. "Introduced a new private member's bill in Parliament to amend the dodgy criminal laws. Section 63 of Bharatiya Nyaya Sanhita (BNS) provides an exception for marital rape," O'Brien said in a post on X on Sunday.

"This undermines the autonomy and equality of women. My bill seeks to ensure marital rape is not out of the purview of criminal laws," he said. Accordingly, the Bharatiya Nyaya Sanhita (Amendment) Bill, 2024, proposes to replace the exception with "the fact of a subsisting marriage of the accused and the victim shall not be treated as a mitigating factor for the offence under this section".

The statement of object and reason of the bill says the 42nd Report of the Law Commission (1971) suggested the removal of this exception. The Indian Penal Code (1860) was amended in 1983 to criminalise spousal rape during the period of judicial separation, as suggested by the 84th Law Commission Report. However, the exception of martial rape still remained, it says.

The bill also says Article 2 of the Declaration of the Elimination of Violence against Women unequivocally includes marital rape in the definition of violence against women.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee also suggested that India should "widen the definition of rape in its penal code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape".

It also says the Justice Verma Committee recommended deleting the exception.

"Apart from being a moral obligation, incorporation of such international treaties is prescribed in Article 253 of the Constitution of India.

"In addition, Article 51 requires that the state should endeavour to promote international peace and security, maintain good relations with other nations, and respect international law. Under both these articles, it is a mandate that the legislature removes this exception," the Bill says.

It also highlights that the Protection of Women from Domestic Violence Act, 2005 (PWDVA), does not criminalise marital rape but recognises it as a form of domestic violence, providing "a first step towards criminalisation".

"The marital rape exception is antithetical to the Right to Life and Personal Liberty provided under Article 21 of the Indian Constitution, which states that 'no person shall be deprived of his life and personal liberty except according to the procedure established by law'," the Bill adds. "Thus, there is a need to remove the exception of marital rape from the offence of rape."