Shashi Tharoor pushes to criminalise Marital Rape: Why India needs a Marital Rape law?

Congress MP Shashi Tharoor introduced a private bill on Friday in the winter session of the parliament to criminalise marital rape in India. The bill will amend section 63 of the Bharatiya Nyay Sanhita, which excludes non consensual sexual intercourse within marriage from the definition of rape. While introducing the bill, Tharoor said that marriage can not deny the woman's right to grant or deny consent. He asserted that India should move from "no means no" to “only yes means yes”.

“Every woman deserves the fundamental right to bodily autonomy and dignity within marriage, protections our legal system fails to provide. Marital rape is not about marriage but about violence. The moment for action has arrived,” said Shashi Tharoor, Congress MP of Thiruvananthapuram.

Why is criminalising marital rape important?

India is among the 34 countries that do not give any provisions to marital rape, most of which are developing nations. 77 out of 185 countries criminalise marital rape through the law, while 74 countries allow women to file complaints against their husbands. According to the National Family Health Survey, 83 per cent of women aged 18-49 who faced sexual violence list their husband as their perpetrator.

Both the BNS and IPC recognised the illegality of rape, but excluded individuals for the status of being a husband or wife, which is contradictory to Article 14, equality before the law. Sexuality itself is a mixture of physiological and psychological attributes, and marriage as a social institution has been evolving throughout history. Even in the most private instance of marriage, one does not lose their dignity or individuality, which is enshrined in Article 21, right to life and dignity of the Indian Constitution. The government has previously argued that removing the marital rape exception would destroy the institution of marriage. Now, if an institution tries to legalise a form of violence due to its structure, then it is regressive. It either has to evolve with the prevalent morality or perish.

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