Remove marital rape exception from Bharatiya Nyaya Sanhita, says Derek O'Brien

TMC leader Derek O'Brien has strongly opposed the marital rape exception in the Bharatiya Nyaya Sanhita, stating that it disregards a woman’s right to consent once she is married.

Calling the provision "archaic" and a violation of constitutional rights such as personal liberty, equality, and privacy, O'Brien has introduced a private member’s bill in the Rajya Sabha to remove the exception.

O'Brien, who was part of the joint parliamentary committee that reviewed the law before its enactment, highlighted that opposition MPs had raised concerns and submitted dissent notes against the provision. According to Section 63 of the Bharatiya Nyaya Sanhita, sexual acts between a husband and wife are not considered rape unless the wife is under 18 years old.

The TMC MP argues that this exception upholds outdated and patriarchal beliefs, denying married women control over their own bodies.

In a blog post, O'Brien emphasised that the exception contradicts legal recognition of women's reproductive choices, which include the right to abstain from sex or use contraception. He also pointed out that India's legal system continues to reflect colonial-era norms that fail to recognise gender equality.

The Bharatiya Nyaya Sanhita (Amendment) Bill, 2024, introduced by O'Brien, seeks to replace the current exception with a provision stating that a marriage between the accused and the victim should not be considered a mitigating factor in cases of rape. He urged the Union government, its allies, and the opposition to unite in passing a law that upholds women's dignity and equality.

O'Brien concluded by stressing that the continued existence of this exception perpetuates gender-based violence and discrimination.