Derek introduces bill seeking to criminalise marital rape
Times of India | 9 February 2025
123 Kolkata: A new private member's bill introduced by Trinamool Congress MP Derek O'Brien in Rajya Sabha on Friday seeks to criminalise marital rape as it "undermines the autonomy and equality of women". O'Brien, while moving the bill, said: "...Men cannot have a separate rule just because they are married to the woman."
The MP shared a video of himself on X introducing the bill in the Upper House and stated: "Introduced a new Private Member's Bill in Parliament to amend the dodgy criminal laws. Section 63 of BNS provides an exception for marital rape. This undermines the autonomy and equality of women. My bill seeks to ensure marital rape is not out of the purview of criminal laws."
Under BNS Section 63, the offence of rape provides for an exception that states sexual intercourse or sexual acts by a man with "his own wife" above 18 years of age is not rape.
The Bharatiya Nyaya Sanhita (Amendment) Bill, 2024, moved by O'Brien emphasised that the right to life under Article 21 had been expanded by Supreme Court to include "a dignified life, safe living conditions, a woman's right to her reproductive choices, and privacy. Thus, there is a need to remove the exception of marital rape from the offence of rape."
It says the 42nd Report of the Law Commission (1971) suggested the removal of this exception. The bill suggested exception 2 under BNS Section 63 be replaced 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."
IPC was amended in 1983 to criminalise spousal rape during judicial separation, but the exception of marital rape still remained, the bill stated. It was further pointed out that the Protection of Women from Domestic Violence Act, 2005, did not criminalise marital rape but recognised it as a form of domestic violence, providing a first step towards criminalisation.
Article 2 of the Declaration on the Elimination of Violence against Women, adopted by UNGA, includes marital rape in the definition of violence against women. The committee on Convention on the Elimination of All Forms of Discrimination Against Women, also adopted by United Nations, 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'. Inspired by this, 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 reasoned.