On the Exception to Marital Rape

Syllabus :GS 1/Social Issues

In News

The Supreme Court is hearing petitions to criminalize non-consensual sexual acts in marriage as rape.

  • Justice J.B. Pardiwala questioned why wrongful confinement, intimidation, and assault are criminal offenses, but forced sexual intercourse by a husband is not considered rape.

Historical Context:

  •  Marital Rape Exception (MRE) stems from colonial English law, particularly the “doctrine of coverture,” which stripped married women of legal autonomy.
  • The MRE was influenced by historical views, notably from jurist Matthew Hale in the 18th century, asserting that marriage equates to irrevocable consent.
  • England abolished the MRE in 1991, but India retained it.

Statistics on Marital Violence:

  • Data from the National Family Health Survey-5 (2019-2021) shows that nearly one-third of married women in India have faced physical or sexual violence from their husbands.
    •  Additionally, global statistics reveal that approximately three-quarters of all sexual assaults transpire within intimate settings, often perpetrated by someone familiar to the survivor.

Current Legal Framework:

  • Section 375 of the IPC and Section 63 of the Bharatiya Nyaya Sanhita exclude non-consensual sexual intercourse by a husband from the definition of rape if the wife is over 15 or 18 years old, respectively.
  • They provide legal immunity for husbands regarding non-consensual sex with their wives.
  • A married woman can seek relief under other laws, like the Protection of Women from Domestic Violence Act, but these are limited.

Issues and Concerns 

  • Petitioners assert that the current laws violate women’s rights to bodily integrity, autonomy, and dignity.
    • The exception is deemed unconstitutional, violating:
      • Article 14 (equal protection under the law).
      • Article 15(1) (right to non-discrimination).
      • Article 21 (right to privacy and bodily integrity).
  • the harm experienced by women from rape, regardless of the perpetrator’s relationship to them, is fundamentally the same.
  • It is argued that recognizing a married woman’s right to refuse sex would not undermine marriage; it affirms sexual autonomy.
    • It is argued that consent must be an unequivocal and voluntary agreement, applicable to married women as well.

Government’s Stance:

  • The Centre argues against striking down the MRE, claiming it could undermine marriage, lead to false allegations, and should be considered a social issue rather than a legal one.

Judicial Observations:

  • Chief Justice D.Y. Chandrachud noted the inconsistency in law where certain acts are classified as rape if committed by a stranger but not by a husband.
  • The Supreme Court has previously acknowledged that intimate partner violence can constitute rape.
  • A 2022 Karnataka High Court ruling allowed for the prosecution of husbands for marital rape.

Future Outlook 

  • The Court has the authority to evaluate whether the MRE violates fundamental rights and to potentially strike it down if it does.
    • The court is considering whether to create a new offense or simply align existing laws with constitutional values.

Source: TH

 

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