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