
doi: 10.2139/ssrn.6627898
Marriage, as a legal institution, has historically been invoked to deny women the fundamental right to withhold consent in sexual relations with their spouses. The doctrine of implied conjugal consent, originating in seventeenth-century English common law, permeated the criminal statutes of numerous jurisdictions across the world, treating spousal rape as a legal impossibility. While democratic nations have progressively dismantled this doctrine, India continues to retain Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023 (BNS), which exempts a husband from criminal liability for non-consensual intercourse with his adult wife. This paper undertakes a doctrinal and comparative analysis of marital rape laws across four jurisdictions: India, the United States of America, the United Kingdom, and South Africa. Through an examination of legislative frameworks, judicial pronouncements, constitutional principles, and reform trajectories, this paper argues that India's marital rape exception is constitutionally untenable and inconsistent with international human rights obligations. The comparative lens further reveals that legislative inaction in India is not a product of legal impossibility but of political willa will that other jurisdictions have demonstrably exercised. Drawing on the divergent approaches of the four jurisdictions, this paper proposes a framework for reform that preserves prosecutorial safeguards while criminalizing non-consensual sexual conduct within marriage.
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