Exception to marital rape in BNS: Sends message that woman's consent irrelevant, says TMC's O'Brien

New Delhi: The "archaic" exception provided to marital rape in the Bharatiya Nyaya Sanhita (BNS) sends a dangerous message that a woman's right to consent is irrelevant once she enters into a marriage, TMC leader Derek O'Brien said on Wednesday.

The TMC's parliamentary party leader in the Rajya Sabha, who last week introduced a private member's bill to scrap the exception, called it a direct violation of women's constitutional rights, including personal liberty, equality and privacy.

O'Brien, who was part of a joint parliamentary committee that examined the BNS before it was enacted, said in a blog post that opposition MPs had mentioned the exception in their dissent notes submitted to the panel.

"Section 63 of the BNS (one of the three new criminal laws passed by this government) continues to provide a disturbing exception for marital rape, undermining the autonomy and equality of women. This archaic exception sends a dangerous message -- that a woman's right to consent is irrelevant once she enters into marriage," O'Brien said.

"This exception, rooted in outdated beliefs and patriarchal systems, is not just an affront to the dignity of women but also a direct violation of a woman's constitutional rights, including personal liberty, equality and privacy," he said.

The TMC leader called it a legacy of the British colonial legal system, which did not recognise the equality of men and women.

"This bizarre exception has remained, despite multiple recommendations for change," O'Brien said and added that, as a member of the joint parliamentary committee, which "hurriedly" examined the bills before their enactment, he and other MPs from opposition parties had submitted dissent notes objecting to the exception.

"The sexual rights of a woman are a vital component of her personal liberty. The exception denies women control over their own bodies. As the courts have recognised, reproductive choices include the right to abstain from sex, use contraception, or decide not to have children. Denying women this discretion within marriage exacerbates gender-based discrimination and violence," he said.

O'Brien added that the state's failure to remove this exception only perpetuated the cycle of violence and discrimination that continued to plague women in marriage and in society.

"It is time for the Union government, its allies and members of the opposition to come together to pass a law that reflects the dignity, and equality of women," he added.

Under Section 63 of the Bharatiya Nyaya Sanhita, which defines rape, exception has been provided for "sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age", and says it is not rape.

The Bharatiya Nyaya Sanhita (Amendment) Bill, 2024, a private member's bill introduced by O'Brien, proposes to replace the exception with, "The fact of a subsisting marriage of the accused and the victim shall not be treated as a mitigating factor for the offence under this section."