This blog is written byAtulya Srivastava, a Second-year law student of University of Lucknow

Introduction

Marital Rape is a matter that has sparked a lot of debates and feelings in India over the time. It is an issue that sits at the crossroads of law, culture, and societal morals. With the preface of Bharatiya Nyaya Sanhita 2023, there is a new wave of discussion about whether this legal change does enough to address the problem.

What is the Big Deal about Marital Rape?

In simple terms, marital rape refers to non-consensual intercourse between a wedded couple. The idea that consent is always given in marriage has been deeply embedded in numerous cultures, including India. The old Indian Penal Code (IPC) from 1860 did not recognize marital rape as a crime if the war was over 15 years old. This legal loophole said that once you are wedded, saying" no" to sex is not an option under the law.

Why This Needs to Change?

For ages, activists and legal experts have argued that this exception is unfair and violates a woman’s basic rights. The idea that marriage equals automatic consent is outdated and does not fit with ultramodern ideas of equality and individual freedom. The Justice J.S. Verma Committee, which was formed after the 2012 Delhi gang rape case, also pushed for the disposal of this exception, but nothing changed at that time.

So, What Does the Bharatiya Nyaya Sanhita 2023 Say?

The BNS 2023 is a new set of laws aiming to replace the old IPC. It makes some important changes, especially regarding sexual offenses. For one, the BNS 2023 raises the age under which-consensual sex between a man and woman is considered rape from 15 to 18 years. This is good news because it aligns with the age of consent. still, then the catch for adult women, the exception still exists. However, the law still does not consider consensual sex with your husband as rape, if you are wedded and over 18. This means that while the law has bettered safeguards for minors, it still leaves adult wedded women vulnerable.

Why Are People Upset About This?

Numerous people feel that this is a half-baked result. Yes, guarding minors is pivotal, but what about adult women? The law still seems to assume that once you are wedded, you have given up your right to say" no." Critics argue that this reinforces outdated, patriarchal ideals where women are seen as the property of their husbands. Some people worry that if marital rape is criminalized, the

law could be misused. However this argument does not hold important water for numerous activists and experts. They point out that other countries have criminalized marital rape without seeing far-reaching abuse. It seems illegal to deny justice to victims because of the eventuality of many false cases.

Where do we go from here?

The BNS 2023 shows that India is slowly moving in the right direction, but there is still a long way to go. Changing the law is just one part of the closed book. Society also needs to change its stance towards marriage and consent. Public education movements and conversations about what consent means are essential. The courts also play a pivotal part. Judges can interpret the law in ways that safeguard women’s rights, indeed if the law itself is not perfect. Their opinions can help pave the way for unborn legal reforms that eventually address marital rape in a meaningful way.

Conclusion

The Bharatiya Nyaya Sanhita 2023 is a step forward in some areas, but it is not the result numerous had hoped for when it comes to marital rape. The fact that the law still does not completely cover wedded women shows that there is a lot of work left to do. The discussion around marital rape in India is not over, and with uninterrupted effort, there is a possibility for a more just and equal legal system in the future.

References:

1. Justice J.S. Verma Committee, ‘Report of the Committee on Amendments to Criminal Law’ (2013) PRS India

<https://prsindia.org/files/policy/policy_committee_reports/1359132639-Justice_Verma_Committee_Report.pdf> Accessed 03

September 2024.

2. PRS India, ‘The Bharatiya Nyaya Sanhita Bill, 2023’ (2023) PRS India <https://prsindia.org/billtrack/the-bharatiya-nyaya- sanhita-bill-2023> accessed 03 September 2024.

3. National Crime Records Bureau, ‘Crime in India – Statistics’ (2021) NCRB <https://ncrb.gov.in/en/crime-in-india> accessed 03 September 2024.

4. Koushal v Union of India (2018) Supreme Court of India <https://indiankanoon.org/doc/164000179/> accessed 03 September 2024.

5. UN Women, ‘Progress of the World’s Women: In Pursuit of Justice’ (2011) UN Women <https://www.unwomen.org/en/digital- library/publications/2011/12/progress-of-the-world-s-women-in-pursuit-of-justice> accessed 03 September 2024.