Marital Rape – A Comparative Socio-Legal Analysis of Cultural Legitimacy, Norms, Religion, and Resistance to Reform

Abstract

In modern criminal jurisprudence, especially in cultures where marriage is seen as a sacred institution both culturally and religiously. Marital rape continues to be one of the most debatable issues in modern criminal jurisprudence. This paper aims at conducting a comparative socio-legal study on marital rape by focusing on the interplay between law, cultural legitimacy, patriarchal norms, religion, and opposition to legal reform. It is more so concerned with the legal framework of India where the marital rape exception persists under Section 63 of the Bharatiya Nyaya Sanhita, 2023, despite the increasing constitutional and human rights issues. The paper follows the historical antecedents of the marital rape exemption to the common law doctrine of implied consent and theory of coverture, which denied married women independent sexual autonomy. The paper indicates how a number of legal systems have discarded marital immunity through a recognition of consent, dignity, and bodily autonomy in marriage. The paper also examines the role of conservative meanings of religion, family honour, gender roles, and fears of misuse of law in resisting criminalisation in India. It claims that the marital rape exception has been endured due to underlying socio-cultural disparities, and not necessarily due to legal restrictions. The paper finds that the remedy of the issue does not merely lie in the legislative amendments, but also in the institutional sensitisation, survivor support systems and the overall reformation of the societal attitudes towards marriage, consent, and autonomy of women.