Rape is a serious criminal offense against women. Rape is an offense when it is forcefully done by the criminal to the victim without consent, through coercion, or blackmail [1]. However, in the context of marriage, marital rape raises legal issues.
Section 375 of IPC (Indian Penal Code, 1860) [2] states, “The intimacy by a husband with his wife without her consent after marriage, the wife age above fifteen, is not considered rape in the eyes of law.” This legal provision objectifies women. Marital rape has been ignored by the law-making bodies and has not been addressed in the BNS either.
REASON WHY MARITAL RAPE IS NOT CONSIDERED RAPE
- 42nd Law Commission report—this report explored revisions the amendments in the IPC (Indian Penal Code) and CrPC (Criminal Procedure Code). It was announced in 1959 but submitted to the government by the end of September 1969. [3]
- 172nd Law Commission Report—This report was made for analysing the rape case in India, considering the increasing incidence of rape and sexual harassment, especially against minors. It was based on gender neutrality and was passed on 25th March 2000. [4]
Despite these reports, nothing has changed regarding marital rape. None of the reports passed by the Indian legal system has addressed “why marital rape is not treated as a criminal offense” in the context of rape. It has been kept aside by the three pillars of the Indian legal system—the judicial, executive, and legislative.
ORIGIN
In 18th-century England, regulations enacted by the British legislative bodies set an example—women were subordinate to their husbands after marriage during that era. One of the major reasons why husbands enjoy privileges and rights over their wives is intimacy without her consent. The consent of a woman was not prioritized by the statutory bodies.
Due to patriarchal systems and the dominant nature of men, marital rape is not considered a crime under Indian law. A husband is not a rapist in the eyes of statutory law in the context of marital rape. Article 14 of the Indian constitution talks about “equality before the law” and “equal protection of the law,” but in marriage, women are frequently victims, and their rights under Article 14 are infringed. In the modern era, women are independent. Women may take responsibility for themselves and should be able to give or deny permission in all situations. Although there are many laws for women’s safety, and law-making bodies profess to emphasize women’s safety,
However, there is no specific law governing rape inside marriage committed by the husband. In India, marital rape cases are frequently increasing, yet the government does not recognize it as a legitimate problem.[5]
RELEVANT CASES ON MARITAL RAPE [6]
Case name – The chairman railway board & Ors vs Mrs. Chandrima Das & Ors case (28 January 2000)
Fact – The petitioner filed the petition against many officers of East West Bengal including the Deputy High Commission, Republic of Bangladesh, she claimed that the respondent is ready to pay compensation to victim, Smt. Hanuffa Khatri a Bangladeshi citizen.
Judgment: The High Court held all the officers are liable for compensation, and the victim received an amount of Rupees 1,000,000. The rape was committed in a railway station in the building (Rail Yatra Niwas) belonging to the railway.
Conclusion: Here the question arose whether the railway is liable to pay compensation within three months to victim Smt. Hanuffa Khatri (Bangladeshi citizen). The High Court held, “Since it was the individual act, the railway was not liable,” which was viewed as unjust and an infringement of Articles 14 and 21 of the Indian constitution, which also applies to foreigners. It is also a violation of women’s dignity and personal autonomy.
This case highlights the court statement, “Rape is not just a crime or legal offense but also a serious violation of dignity and humility.” [7]
BHARATIYA NYAYA SANHITA (BNS),2023
IPC criminalized criminal activities committed by criminals over the past 160 years. In IPC there were a lot of errors that required updates to meet the demands of modern societal needs. Home Minister Amit Shah stated that the IPC lacks specific provisions for criminalizing crimes against women. The parliament acknowledged all the primary challenges faced by most people and made the BNS according to the current circumstances. That is why the parliament implemented a new bill, BNS (Bharatiya Nyaya Sanhita), 2023, which replaced the old criminal justice system, IPC 1860, created by the British.
Under the BNS, crimes against women, such as intimacy done by a man with a woman under false promises of marriage or sexual intercourse done with a woman in the context of employment and promotion, all fall under BNS, which is considered a crime under the new bill introduced by the parliament and is now punishable under BNS, 2023. Since there were no special provisions in the IPC for modern crimes such as corruption, women’s safety, or all the technical crimes, the three pillars of the Indian legal system decided to replace the old version of the criminal justice system IPC with the new version of the criminal justice system BNS, which includes all the provisions regarding modern crimes. [8]
DIFFERENCE BETWEEN IPC AND BNS [9]
| SNO | ASPECT | IPC | BNS |
| 1 | Change in title | In IPC (Indian Penal Code) the term code was there. | Sanhita replaced the code of the IPC. |
| 2 | Structure | IPC was based on 19th-century needs. | BNS is based on 21st-century needs. |
| 3 | year | IPC was made in 1860. | BNS was made in 2023. |
| 4 | origin | IPC was created by the British during colonial rule. | BNS was made in sovereign India. |
| 5 | provision | In IPC there was no special provision regarding modern crime like cybercrime. | BNS includes special provisions for modern technology crimes like cybercrime. |
SPECIAL PROVISIONS ADDED IN BNS [10]
1. Offense against women:
(a) Rape [section 63]: IPC has laws against rape, humiliating, and following women. These were a few offenses that were criminal offenses in IPC. However, a pre-provision of the IPC was added in BNS including gang-raped, and intimacy done with women in terms of false promises of marriage.
Penalties for this act:
(i) death sentence or life imprisonment
(ii) liable for penalty
(b) Intimacy done by husband upon her wife after separation [section 67]: if a husband has done any kind of sexual intercourse with his wife without her consent after separation, it is considered an offense under BNS.
Penalties for this act:
(i) liable for penalty
(ii) Imprisonment for 2 years, and it can be extended to 7 years also.
2. Terrorism [section 113]:
(a) In IPC, the term terrorism was mentioned, but in the BNS the term is defined clearly.
(i) threaten the security of the country.
(ii) disturb public order.
Any person who has threatened the sovereignty, integrity, and security of the country is considered a terrorist, and the person who does this offense to harm the peace of the country by using illegal weapons or bombs or firing arms is considered a terrorist activity; however, there is a strict provision for this offense.
Penalties for this act:
(i) death sentence or life imprisonment
(ii) with a penalty of ten lakh rupees.
3. Organised crime [section 111]:
(a) In IPC modern crimes, such as kidnapping, illegally occupying someone’s land, scams, and one of the most common crimes, which is nowadays spreading rapidly all over the world, “cybercrime,” due to lack of technology in colonial rule, there was no special provision for the digital crimes, but now the world itself depends on technology. So, there is an extremely high chance of cybercrime occurring rapidly, which is why in the BNS these crimes, which were not introduced in the IPC before, are now part of the BNS.
(b) If the death occurred under section 111,
Penalties for this act:
(i) Then the criminals are liable for 1,000,000 penalties.
(ii)life imprisonment or death sentence.
(c) If organized crime does not result in the death of any person,
Penalties for this act:
(i) Then the criminal is liable for 500,000 penalties.
(ii) 7 years of imprisonment.
4. Mob lynching [section 106]:
a) If any person does mob lynching based on caste, religion, language, or gender. And if more than five people commit this offense against the victim, then it is considered a serious offense in the BNS.
Penalties for this act:
(i) death sentence or imprisonment for seven years.
CONCLUSION ON BOTH MARITAL RAPE AND BNS
The BNS plays a significant role in updating Indian criminal law according to the crimes occurring nowadays rapidly. The IPC was made in 1860, and during that era, there was less crime compared to the 21st century, which no longer met the needs of modern society. So, the new criminal laws were much needed in our country for the modern offenses occurring rapidly increasing. The government needed to take major steps to decrease the crime rate in India, and some changes in criminal law were also much needed; that’s why BNS was introduced by the government.
The BNS is a new criminal law that addresses new types of crimes and updates punishment accordingly. In IPC, marital rape was not an offense, so there is no such provision for marital rape, but it is a fact that in BNS, too, there is no such provision made about marital rape. Even when the BNS was implementing them, the marital rape topic was ignored by the government. Although after the implementation of BNS,” marital rape is not considered to be rape,” and there is no punishment for the offense done against marital rape.
REFERENCE ON BOTH MARITAL RAPE AND BNS
[1] By Anindita Deb, Rape under Section 376 IPC, LawSikho (6th June 2022), available at Rape under Section 376 IPC – iPleaders
[2] INDIA CONST. sec 375 of IPC
Darshit Vora, Section 375 IPC: rape(22nd may , 2022) Section 375 IPC : rape – iPleaders
[3] By GurleenKaur, 42nd Law Commission Report on Sedition, ledroitindia (28th July 2023), available on
Law Commission of India, Twenty-second Law Commission, Report No.42(June 1971), available on Twenty-Second Law Commission Report | Law Commission of India | India
[4] By Partners For Law In Development, 172nd Report of the Law Commission of India on Review of Rape Laws (March 2000), Feminist Law Archives ( June 22, 2015), available on LAW-COMMISSION-OF-INDIA.pdf
[5] By Raveena Rao Kallakuru & Pradyumna Soni, CRIMINALISATION OF MARITAL RAPE IN INDIA: UNDERSTANDING ITS CONSTITUTIONAL, CULTURAL AND LEGAL IMPACT, Manupatra (2018), available on
or,
By Soumali Roy, All you need to know about Marital Rape, LawSikho(August 9th 2020), available at All you need to know about marital rape – iPleaders
[6] By S.Saghir Ahmad, The chairman railway board & Ors vs Mrs. Chandrima Das & Ors case, Kanoon(28 january,2000), available at The Chairman, Railway Board & Ors vs Mrs. Chandrima Das & Ors on 28 January, 2000
[7] By Kuldip Singh , Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty on 15 December, 1995, Kanoon, available at Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty on 15 December, 1995
[8] By Ruchika Mohapatra, Understanding Bharatiya Nyaya Sanhita, 2023: Part I, Law Octopus
( Dec 17, 2024), available at Understanding Bharatiya Nyaya Sanhita, 2023: Part I
or,
By Vaishali Chhabra, Comprehensive Evaluation: Bharatiya Nyaya Sanhita Bill, 2023 , Juris Centre (7th October,2023) , available at Comprehensive Evaluation: Bharatiya Nyaya Sanhita Bill, 2023 – Juris Centre
[9] By Jessica Attorney, Difference Between IPC and BNS: Comparative Analysis, Zolvit (formerly Vakilsearch), available at https://www.zolvit.com/blog/difference-between-ipc-and-bns/
[10]By Kartika, THE BHARATIYA NYAYA SANHITA 2023, Ncret(October 2024), available at BNS910-2023E.pdf
Author: Khushi Verma
Juris Centre 