The Constitutional Death of Coverture in India: The Marital Rape Exception as a Legal Fossil

Author: Ms. Jessica Benita Immanuel^[1]

Abstract

India is a country that has undoubtedly undergone significant reforms in the socio-legal and economic sphere with regard to the recognition of women’s rights and maintaining the core constitutional values. However, whilst in the exercise of interpretation of constitutional ideas, there lies a gap in the exceptions that are unexplored by judges and jurists alike. The rape laws in India have evolved from the Indian Penal Code to the recently implemented Bharatiya Nyaya Sanhita of 2024, which was accompanied by a wave of jurisprudential reform. Even so, there exists a perpetual gap in the concept of marital rape. Even though the Doctrine of Coverture has been rejected by the courts of law in India, the exception for rape in criminal law as of today remains to be marital rape, raising concerns on the attempt of the judiciary to follow the consitutional values in its truest form. This paper hypothesises that even with the introduction of the new criminal laws, there is no provision for punishment of marital rape or even recognition of such a concept. By adopting a highly critical and analytical approach, this paper examines the concepts feminism, the Doctrine of Coverture and compares the colonial and post colonial legal language of rape laws in India and proposes an amendment to legally recognise and criminalise marital rape. It also aims to understand the social stigma of marital rape and its impact on Indian criminal jurisprudence. This research is significant for new policy reforms and academic research as well.

Keywords: Marital Rape, Bharatiya Nyaya Sanhita 2024, Doctrine of Coverture, Feminist Theories, Rape Laws in India

"If I were to hazard a guess, those amongst us who want the status quo to continue would perhaps want to have the MRE [Marital Rape Exception] struck down if the victim involved was his/her mother, sister, or daughter." — Justice Rajiv Shakdher.

INTRODUCTION:

The social stigma surrounding rape still continues in the modern times in India, and it almost seems like a paradox between digital advancement and stagnant social norms and societal thinking. Over the years, India along with the rest of the world has seen a trancedental shift in social norms and the extent of accepting new behaviour and have accommodated “abnormal” norms as well. For example, the decriminalising of Section 377 which pertained to same-sex relations, was struck down in the historic case of Navtej Singh Johar v. Union of India^[2].  The Hon’rable Court opined in a very apt manner that, “The overarching ideals of individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute the cardinal four corners of our monumental Constitution forming the concrete substratum of our fundamental rights that has eluded certain sections of our society who are still living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindset and bigoted perceptions. Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards full development of his/her personality that we can call ourselves a truly free society. The first step on the long path to acceptance of the diversity and variegated hues that nature has created has to be taken now by vanquishing the enemies of prejudice and injustice and undoing the wrongs done so as to make way for a progressive and inclusive realisation of social and economic rights embracing all and to begin a dialogue for ensuring equal rights and opportunities for the ―less than equal sections of the society. We have to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination.”^[3] 

The judgement in itself serves as a testament of the now accepted belief that individual autonomy and dignity are part of the foundational pillars of our Constitution. Yet with such aspirations, the question of whether individuals, especially married women are given due autonomy and protection of their dignity behind the closed curtains of marriage? The shift from IPC to BNS has been praised for its transformative language but also simultaneously critiqued for its gap in rape laws and its marital rape exception.

The concept of marital rape refers to the circumstance where within a lawful marriage, a wife does not consent to sexual relation with her husband but the husband continues with it ignoring her withdrawal of consent. It raises the question whether the socially and naturally accepted sexual relations between husband and wife could have an element of non-consensual sexual relations or whether such consent is to be automatically assumed under the institution of marriage. It is here at this cortex that legal scholars find themselves to be in a legal “blackhole” where the existing criminal law in Section 63 of the BNS states that any sexual act or sexual relation between a lawfully wedded husband and his wife, not being under the age of 18 cannot constitute the conventional meaning of rape.^[4]

But, the definition of rape lies on the nexus of whether consent has been given freely, or under duress or not given at all. So then, how can one ascertain whether consent to sexual relations could be witheld in a lawful marriage. The central idea of this paper remains to investigate the reason why such marital rape exception should be removed and how amending such a gap will be supported by feminist world view as well.

UNDERSTANDING THE DOCTRINE OF COVERTURE

The Doctrine of Coverture refers to a legal doctrine put forth by English Common Law, and elaborated and codified by Sir William Blackstone in his book ‘Commentaries on the Laws of England’. He defines coverture as, “…by marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture.”^[5]

Here, it is by nature of marriage that the woman is dissolved into the personality and identity of her husband. This means the dissolution of her individual autonomy rights like right to property, right to a separate identity and so forth. This Doctrine can also be read along with the Hale Doctrine by Sir Mathew Hale which gives way for implied consent and it posits that a husband cannot be convicted of raping his own wife as the mutual contract of marriage means that the wife irrevocably gives the husband sexual access that she cannot retract.^[6] Hence, with the access to perpetuity given to this concept, marital rape continues to be an exception for criminal liability for rape.

CONSTITUTIONAL DEATH OF COVERTURE IN MODERN INDIAThe Indian Courts have always been a stalwart of advancing justice, legal insight and landmark precedents that carry its existence throughout the years. One such act of the Courts in India is that of rejecting the idea of coverture and views a woman as a separate entity from her husband even after marriage, which is quite a significant deviance from the influence of Indian jurisprudence, i.e., English Common Law. The Hon’rable Supreme Court in the case of Joseph Shine v. Union of India^[7] boldly stated that, “At first blush, it may appear as if it is a beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in the section is a kind of ―romantic paternalism which stems from the assumption that women, like chattels, are the property of men.”^[8] The judgement also goes on to confer that, there is no room for male chauvinism in these modern times. And the equality guaranteed under Article 14 and 15 of the Indian Constitution has to be regarded as summum bonum^[9]. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. But most important of all is the cardinal value of fraternity which assures the dignity of the individual. The dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices and control over dissemination of personal information which may be infringed through an unauthorized use of such information.

Perhaps a more convincing action on behalf of the Court may be its reasoning laid down in Independent Thought v Union of India^[10] which confirmed the standing of international frameworks on the question of whether if a girl child is forced by her husband into sexual intercourse against her will or without her consent, it would amount to a violation of her human right to liberty or her dignity guaranteed by the Constitution or at least embodied in international conventions accepted by India such as the Convention on the Rights of the Child (the CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (the CEDAW). Protection of Women from Domestic Violence Act, 2005 (DV Act).  The discussion on the bodily integrity of a girl child and the reproductive choices available to her is important only to highlight that she cannot be treated as a commodity having no say over her body or someone who has no right to deny sexual intercourse to her husband. The human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance. Another famous case worthy of discussion is no doubt, Justice K.S Puttyswamy v. Union of India^[11], where the Court reasoned that privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. This gives the need for the removal of the marital rape exception under Section 63 BNS a moral and jurisprudential backing relating to the nexus of the ability to make choices which serves an impertinent element of being a human.

In the case of Shafin Jahan v. Asokan K.M,^[12] The Court opined in its expert legal opinion that, It needs no special emphasis to state that attaining the age of majority in an individual's life has its own significance. Our autonomy as persons is founded on the ability to decide and what we speak, on the right to believe or not to believe, on whom to love and whom to partner, and to freely decide on innumerable matters of consequence and detail to our daily lives. The strength of the Constitution lies in the guarantee which it affords that each individual will have a protected entitlement in determining a choice of partner to share intimacies within or outside marriage.

Now the reality is, if the doctrine of coverture is dead constitutionally, then why is it still alive in rape law in India? It is at this junction that the core argument of this paper thrives.

FEMINIST PERSPECTIVES

By drawing from various aspects of the feminist perspectives, one can understand the evolution of the need for equal representation and protection against physical, mental and sexual abuse. According to Camille Cottais, the concept of liberal feminism draws from a political, civic and economic viewpoint of inequality between men and women. Betty Friedan in her book, The Feminine Mystique, criticises the false societal assumption that women by nature find soulful fulfillment through marriage, family rearing and homemaking and opines that women are trapped in a “trap of domesticity”^[13] which leads them to suppress their individual choices and lifestyle. Catherine MacKinnon proposes a theory of gender rooted in the sexual subordination of women.^[14] She elaborates on the male dominated society that has persisted throughout the ages and the sexuality that stems from patriarchal societies continues the stereotype of sex. The marital rape exception assumes husband and wife are equal participants capable of freely negotiating consent. The most important argument is that the law often treats the family as a “private sphere,” thereby shielding gendered violence from legal scrutiny, rather than a constitutional space where rights violations can occur.

The marital exception grants immunity to males to non-consensual sex with their wives, allows for the husband to have power over his wife’s individual human bodily autonomy, a tenet which the Indian courts, in its judgements have outrightly rejected. The marital rape exception continues to embody the partiarchal understanding of female bodily autonomy and perpetuates gender hierarchies in the legal and familial sphere.

It is established on the principle that a woman’s right to bodily autonomy and individual choice cannot be extinguished. Marriage cannot simply assume irrevocable consent, with consent being defined as voluntary and ongoing agreement to engage in sexual affairs. Assuming such irrevocabilty erodes the constitutional guarantees of dignity, privacy and independence of a human being. The very basis of the marital exception lies on such presumed consent due to the marital relationship, which denies women’s legal right to refuse sexual activity. The presumption of the marital exception is rooted deeply in the workings of the  patriarchal system and steers away from equality and individual autonomy. The removal of the marital exception would guarantee legal recognition of sexual relations and the character of irrevocability of consent during sexual acts in a marriage.

COMPARATIVE JURISDICTIONAL ANALYSIS

United Kingdom

Section 1 of the Sexual Offences Act, 2003 saw a historic turn in R v. R when the House of Lords ruled that marital rape is a crime under UK law. The judgment declared that a husband could be guilty of raping his wife, overturning the centuries-old presumption of irrevocable consent. The Court stated that "a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim." This ruling established that consent cannot be assumed simply because of marital status. From 1991 onwards, marital rape became a criminal offence in the UK, and the law also covers partners in long-term cohabiting relationships.

Canada

In Canada, in 1983, sexual assault against one's spouse became an offence. In the Criminal Code, a husband or wife may be charged under sections 271, 272 or 273 in respect of his or her spouse, whether or not the spouses were living together at the time of the offence, thereby legally criminalising both marital and extra-marital rape. The Canadian Panel on Violence Against Women found that 38% of sexually assaulted women were assaulted by their husbands, common-law partners or boyfriends.

Nepal

The Constitution of Nepal contains a specific provision on violence against women under Article 38(3), according to which no woman should be subjected to physical, mental, sexual, psychological or other forms of violence or exploitation, and such acts shall be punishable by law. The marital rape law stemmed from Meera Dhungana v. Government of Nepal. However, its implementation remains limited as the maximum sentence for rape is 10 years, whereas for marital rape it is only 5 years.

By reviewing such legislations, it is clear that India stands isolated from the rest of the world's constitutional democracies by not striking down the marital rape exception. This analysis urges the legal fraternity to take the implications of this exception seriously and bring an amendment for its removal and substitute it with recognition and punishment in the criminal law jurisprudence.

MARITAL RAPE AS A LEGAL FOSSIL

Now boiling down to the central argument of this paper, it is our view that marital rape exists as a constitutional “legal fossil”. Such “fossils” exist from the colonial times, and survive throughout a constitutional change, just as a fossil persists the changing geographical changes around it; and such a legal fossil becomes inconsistent with modern jurisprudence but finds maintenance through a legislative “inertia”. Hence, this paper proposes a framework to identify a legal fossil and urges law-makers to reconsider its existence.

Firstly, there must exist a degree of historical obsolescence, which has become obsolete with the present modern times and contemporary rights and legal recognition of the present subject matters. Secondly, it must find itself incompatible with the iron hand of constitutional guarantees and the aspirations of the constitutional objectives. This means any subject matter that no longer finds itself to be read along with the Basic Structure enshrined in the Preamble of the Indian Constitution, as laid down in the case of Keshavananda Bharati v. Union of India. Thirdly, it must have been rendered irrelevant to the existing normative framework. Such framework refers to the accepted rules, norms, behavior and practices within law, regulations and ethical paradigms.

CONCLUDING REMARKS

The existence of marital rape exception in Indian criminal jurisprudence is a constitutional contradiction as the Indian courts have rejected the influence of the Doctrine of Coverture in modern times in the pursuit of the continued recognition of equality, dignity, privacy and individual autonomy but the very tenet of this Doctrine is perpetuated in the marital rape exception in Section 63 of BNS. The retention of this immunity under marriage remains as “legal fossil”, one which is an outdated colonial remnant preserved within a modern democracy and one which is now fundamentally incompatible with the constitutional guarantees under Article 14, 15 and 21.

“The Constitution buried coverture decades ago; the Post-Coverture Constitutional Consent Framework merely removes the gravestone under which its final legal fossil remains preserved."

 References-

^[1] Ms. Jessica Benita Immanuel is a IV Semester BA LLB student at Christ Academy Institute of Law. She can be reached at jessica.benita.immanuel@calaw.in.

^[2]Navtej Singh Johar v Union of India, AIR 2018 SC (Cri) 1169

^[3] Ibid.

^[4]Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), s 63 Exception 2.

^[5]William Blackstone, Commentaries on the Laws of England, Vol 1 (1st edn, Clarendon Press, 1765).

^[6]Priya Sharma, 'Marital Rape: A Legal Analysis' (2022) 10(2) International Journal of Creative Research Thoughts 2898, https://ijcrt.org/papers/IJCRT2202341.pdf (accessed on 22 May 2026).

^[7]Joseph Shine v Union of India, (2019) 3 SCC 39.

^[8]'Summum Bonum', Wikipedia, https://en.wikipedia.org/wiki/Summum_bonum (accessed on 24 May 2026).

^[9]Independent Thought v Union of India, (2017) 10 SCC 800.

^[10] Ibid

^[11]Justice K.S. Puttaswamy (Retd.) v Union of India, (2017) 10 SCC 1.

^[12]Shafin Jahan v Asokan K.M., (2018) 16 SCC 368.

^[13]Betty Friedan, The Feminine Mystique (W.W. Norton & Company, 1963).

^[14]Catharine A. MacKinnon, Toward a Feminist Theory of the State (Harvard University Press, 1989).

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