Marital rape immunity in India: historical anomaly or cultural defence?

Abstract

This paper will examine the legal position India holds today with respect to marital rape. It will first study how India’s criminal law has been shaped over the years: starting with its colonial common law inheritance from England, and with the development of the criminal law through its inclusion in Macaulay’s Code and continued retention in the Indian Penal Code 1860 (IPC). Outside the IPC, the law has not stood still. There have been recent reforms seeking to advance women’s rights to be free from family violence, such as The Protection of Women from Domestic Violence Act 2005 (PWDVA). After tracing the history of India’s legal responses, the paper will closely investigate the influence of broader Indian culture (claims based on patriarchy and religion) on rape law reform, finally making a case for abolition of the immunity based on the fundamental principle of equality, drawing on arguments from the human rights guarantees included in the Constitution of India, and India’s international legal obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).