What’s in Today’s Article?

• Background
• About Marital Rape Exception (History, Legal Framework, Arguments Against MRE, Judicial Precedents, Govt’s Stand)
• Conclusion

Background:

• The issue of marital rape in India has become a significant topic of legal and social debate.
• The Indian Penal Code (IPC), specifically Exception 2 of Section 375, exempts husbands from being prosecuted for non-consensual sexual acts with their wives, provided the wife is not under 18 years of age.
• This exception is now being challenged in court as a violation of women’s fundamental rights.

History & Genesis of Marital Rape Exception:

• The Marital Rape Exception has its roots in English common law, particularly in the doctrine of coverture, which regarded a married couple as a single legal entity.
  • This effectively meant that a wife did not have the legal right to refuse her husband’s sexual advances.
• The British jurist Matthew Hale argued in the 1700s that a husband could not be guilty of raping his wife, reasoning that by marriage, a woman gave irrevocable consent to sex.
• Though England abolished this exception in 1991, India continues to uphold this provision.
• In 2017, India raised the age of consent for marital intercourse from 15 to 18 years following the Supreme Court’s ruling in Independent Thought vs. Union of India.
• However, the overall exception still persists in Indian law.

Current Legal Framework:

• Section 375 of the IPC defines rape and includes provisions for when sexual intercourse qualifies as non-consensual.
• However, Exception 2 of this section provides immunity to husbands for non-consensual acts with their wives, provided they are over 18 years of age.
• Other legal provisions such as Section 85 of the Bharatiya Nyaya Sanhita (BNS) and the Protection of Women from Domestic Violence Act (2005) offer some protection for married women but are limited in scope and primarily address cruelty, not sexual violence.

Arguments Against the Marital Rape Exception:

• Violation of Fundamental Rights:
  • Article 14: The MRE creates two classes of victims—married and unmarried women.
  • Unmarried women receive full legal protection against sexual assault, while married women do not, violating the principle of equality before the law.
  • Article 21: The MRE infringes on a woman’s right to bodily autonomy and decisional privacy.
  • The Supreme Court’s rulings in Puttaswamy vs. Union of India and Joseph Shine vs. Union of India emphasized that privacy includes the right to control one’s body, irrespective of marital status.
• Gender Equality:
  • Critics argue that the MRE reflects patriarchal values and reinforces the idea that marriage gives husbands unconditional sexual access to their wives, which undermines women’s rights.
• International Perspective:
  • Several countries, including the UK, USA, and Australia, have abolished the marital rape exception.
  • Retaining it in India places the country out of step with modern legal standards concerning women’s rights and sexual autonomy.

Judicial Precedents:

• Karnataka High Court (2022):
  • In Hrishikesh Sahoo vs. State of Karnataka, the court ruled that a husband could be prosecuted for raping his wife, marking a significant shift in addressing sexual violence within marriage.
• Delhi High Court Split Verdict (2022):
  • Justice Rajiv Shakdher declared the MRE unconstitutional, arguing it violates women’s rights to bodily autonomy.
  • Justice C. Hari Shankar, however, upheld the MRE, stating that within marriage, sexual relations constitute a “legitimate expectation.”
• This split decision prompted the petitioners to take the case to the Supreme Court.

Government’s Stand:

• In a recent affidavit, the Union Government opposed striking down the MRE, arguing that marriage creates a “continuing expectation of reasonable sexual access”.
• The government has expressed concerns that criminalizing marital rape could disrupt the sanctity of marriage and lead to false accusations.

Conclusion:

• The debate over the Marital Rape Exception raises critical questions about gender equality, bodily autonomy, and the evolving role of marriage in Indian society.
• As the Supreme Court deliberates, the outcome will not only affect the legal status of marital rape in India but also set a significant precedent for women’s rights and gender justice in the country.