Author
Dr Neha Saxena
Organisation/Institution
Manipal Law School, MAHE, MANIPAL
Country
INDIA
Panel
Women and Law
Title
Marital Rape: A Comparative Study of Legal Frameworks in India, Indonesia and Bhutan
Abstract
Marital rape or spousal rape is sexual assault against one's wife without her consent that violates the right to dignity and sexual autonomy of a woman. Despite these fundamental rights implications, the offence is not criminalised in India. However, if the offence is committed by the husband against a wife who is under 18 years of age, it is a crime. Even the courts in India have declined to include non-consensual sexual acts by a husband within the ambit of rape, Section 63 of Bharatiya Nyaya Sahita, 2023. The ongoing struggle and public debates around marital rape reflect the tension between women’s rights groups advocating criminalisation and the Union Government’s stating that it will be extremely harsh and disproportionate to criminalise rape in the institution of marriage. A similar position exists in Indonesia, where marital rape is treated as domestic violence under the Domestic Violence Law of 2004, but not a rape. Recently, in 2022, the criminal law was amended, but the position relating to marital rape remained unchanged. Ironically, the marital rape laws in both countries stand in contrast with CEDAW, which explicitly obligates member states to criminalise marital rape as a form of gender-based violence. On the contrary, Bhutan offers a progressive model within South Asia. It unequivocally criminalises marital rape, reflecting a rights-based approach that aligns with global human rights principles. This paper will critically analyse the legal framework and judicial approach relating to marital rape in India, Indonesia, and Bhutan and through feminist jurisprudence, the paper will demonstrate how non-criminalisation of the marital rape exception in India and Indonesia perpetuates substantive gender inequality
Biography
I, Dr Neha Saxena, Assistant Professor (Senior Scale), Manipal Law School, Manipal Academy of Higher Education, Manipal, India, with 10+ years of experience in academics, have expertise in the areas of Family Law, Administrative Law, and Criminal Law. I have completed a master's in administrative law (Gold Medalist) and a PhD on Codification of Talaq in India. I have written papers on gender and criminal law. Apart from gender and criminal law, I also have an interest towards subjects like cyber law. Recently, one of my papers on “Exploring LGBTQ Right to Marriage and Adoption: A Comparative Study in India and Sweden” was published in a book chapter published by the Indian Law Institute, Delhi.
