A A three-judge bench headed by Chief Justice of India (CJI) DY Chandrachud will hear a batch of petitions challenging the constitutional validity. Exception 2 of Section 375 of the Indian Penal Code, 1860 (IPC). This challenge also extends, by implication, to exception 2 to section 63 Indian Judicial Code (BNS), 2023Which supersedes the previous provision. These provisions provide legal immunity to Indian husbands by stating that “sexual intercourse or act by a man with his wife, provided she is not under 18 years of age, shall not amount to rape”.
Also read: Supreme Court to hear marital rape exclusion case on October 17
The debate surrounding the marital rape exception (MRE) involves several important questions of law – does marriage give husbands the right to expect sexual intercourse, and does it include implied consent by the wife to sex? Can this presumption of consent be nullified in cases of sexual abuse within the marital bond?
While comprehensive data on marital rape is limited due to stigma and legal barriers, the available statistics are extremely worrying. data from National Family Health Survey-5 (NFHS-5), conducted between 2019 and 2021, shows that nearly a third of married women (18-49 years) in India have experienced physical or sexual violence at the hands of their husbands. Additionally, global data shows that nearly three-quarters of sexual assaults occur in intimate settings, often by someone known to the victim.
Also read: Importance of Consent: On Marital Rape
Roots of Exception
The MRE is a colonial relic, originating from the “doctrine of coverture” in English common law, which severely curtailed a married woman’s legal autonomy. As clarified by the Supreme Court Joseph Shine vs Union of India Decriminalizing adultery In 2018, this doctrine held that after marriage the husband and wife become a single entity i.e. “during the marriage the existence or legal existence of the woman is suspended, or at least subsumed and consolidated with the existence of the husband.” “.
One of the earliest examples of the codification of MRE can be traced to the British jurist Matthew Hale, who wrote in a 1736 treatise that “a husband cannot be guilty of rape committed by his lawful wife, because of their mutual marital By consent and contract: The wife has submitted herself to her husband in a way that she cannot take back. Hale’s argument proved extremely influential in the decades to come and was later adopted by many British colonies. In 1991, England outlawed MREs in a landmark case r vs r Underscoring that the common law principle no longer represents the actual position of a wife in current society. However, India has retained the exemption despite decades of advocacy by feminist scholars and jurists.
challenge
Section 375 of the IPC describes seven situations under which sexual intercourse is considered rape, such as when it occurs without the woman’s consent, or when consent is obtained through coercion. Those convicted face a minimum prison sentence of 10 years, which can extend to life imprisonment with a possible fine. However, the provision sets out two “exceptions”. The first exception relates to medical procedures, which are excluded from the definition of rape. According to the second exception, “sexual intercourse or sexual act by a man with his wife” will not amount to rape if the wife is above 18 years of age.
While the law initially provided immunity to husbands if their wives were under 15 years of age, the Supreme Court revised this age limit to 18 years. Free Thought vs Union of India (2017). Therefore, MRS creates a legal fiction under which, even if all the elements of the offense of rape are fulfilled, if both parties are married and the wife is above 18 years of age, conviction may not take place. However, a married woman may have recourse to other criminal law provisions such as Section 85 of the BNS which criminalises “cruelty” to a woman. Civil remedies can also be availed of under laws such as the Protection of Women from Domestic Violence Act (2005), but they are limited to “protection orders, judicial separation and monetary compensation”.
Also read: Why has marital rape not been made a crime yet in India?
The petitioners have argued that this exception is unconstitutional because it violates several fundamental rights. The most important among them is Article 14 which guarantees equal protection of laws to all persons. MRS creates two distinct classes of victims of non-consensual sex by depriving married women of the protections of the laws extended to unmarried women. According to the petitioners, it also violates the principle of “fundamental equality” by failing to address systemic barriers to ensuring equal protection against sexual violence for all women regardless of their marital status. It was also argued that in specifically disadvantaging married women, the MRS violates their right to non-discrimination under Article 15(1).
Another important aspect is the alleged violation of the right to privacy and physical integrity under Article 21. Supreme Court decision KS Puttaswamy vs Union of India (2017) not only made it clear that privacy is a fundamental right, but also affirmed the concept of decisional autonomy – the right of every individual to determine how their body can be used and for what purpose . As noted True genius by constitutional law expert Gautam Bhatia Puttaswamy This lies in clearly establishing that the right to privacy is not limited to physical places and institutions (such as marriage), but is fundamentally linked to individual self-determination. Therefore, rights are inseparable from the ability to make choices regarding the most integral aspects of one’s body and life. In joseph shineThe apex court drew on this jurisprudence to observe that “family structures cannot be treated as private spaces where constitutional rights are infringed” and to do so would be “to obstruct the manifest vision of the Constitution.”
judicial precedents
In the Karnataka High Court in March 2022 Hrishikesh Sahu vs. State of Karnataka and Others Ruling that a married man could be prosecuted for raping his wife. trust a 2013 report Authored by the Justice JS Verma committee that had recommended abolishing the MRE, Justice M. Nagaprasanna argued that no legal exception could be so absolute as to license crimes against society. However, instead of eliminating it, they made the exemption inapplicable to cases involving husbands committing heinous sexual crimes against their wives.
The case stems from a complaint by a woman in 2017 against her husband, Hrishikesh Sahu, accusing him of committing multiple sexual offences. He was also charged with sexual assault under the Protection of Children from Sexual Offenses Act, 2012 (POCSO) for abusing his daughter. An appeal was later filed challenging the High Court’s decision resulting in an interim stay by a bench headed by former CJI NV Ramana. In an affidavit filed before the apex court, the Karnataka government, however, supported the High Court’s decision.
In May 2022, the Delhi High Court rendered a divided verdictWhich remains the prevailing judicial decision on this issue. Justice Rajiv Shakdhar deemed MRE unconstitutional and said it violates a woman’s bodily autonomy and expression. He described this exception as “steeped in patriarchy and misogyny” and said that “in my opinion, this classification is unfair and clearly arbitrary because it implies that forced sex outside marriage is ‘actual rape’, while The same acts do not occur within marriage.” , In contrast, Justice C. Hari Shankar held that within marriage, sexual intercourse is a “legitimate expectation” legitimizing MRE. “In the marital relationship, introducing the possibility of the husband being considered a rapist of the wife if he, on one or more occasions, has had sexual intercourse with her without her consent is, in my view, completely contrary to the institution of the wife will be. Marriage, as understood in this country, both in fact and in law”, he argued.
Following this fragmented decision, the petitioners moved the Supreme Court, which in January last year clubbed all the petitions related to MRE, including Sahu’s petition. While an official announcement is awaited, the top court in 2022 first identified In a separate case relating to an unmarried woman’s right to seek medical termination of her pregnancy, “sexual assault by a man against his wife may be considered rape”. A division bench led by Chief Justice Chandrachud underlined the lived experiences of many women, saying, “We would be negligent not to recognize that intimate partner violence is a reality and can take the form of rape. The misconception that strangers are exclusively or almost exclusively responsible for sexual and gender-based violence is deeply regrettable.”
center response
of central government Latest affidavit of Supreme Court This is the first time that it has gone on record opposing the closure of MRE. During the proceedings before the Delhi High Court, the government had said that “this issue requires extensive consultation” and that a review of the criminal laws existing at that time was pending. In fact, Justice Shakdhar had recorded in the judgment that the arguments would have been “richer” if Solicitor General Tushar Mehta had “assisted the court in the matter”.
Drawing from Justice Shankar’s opinion, the Center has argued that marriage creates a “continued expectation of reasonable sexual access” which is absent in the case of a stranger or other intimate relationship. While accepting that a man has no fundamental right to violate his wife’s consent, it has argued that classifying such acts as “rape” is “extremely harsh” and “disproportionate”. It also apprised the court that criminalizing marital rape would affect the sanctity of the institution of marriage and would potentially lead to false allegations of marital rape, which would be difficult to refute.
Notably, the government has claimed that marital rape is a “social”, not a legal issue, and therefore falls within the domain of the legislature rather than the judiciary. However, courts have previously rejected such contentions in cases involving violation of fundamental rights.
Creation of a ‘new’ crime?
A key question before the top court is whether repealing the MRE would create a new offence, as it would allow prosecution of husbands who have non-consensual sex with their wives. Justice Shankar, in his opinion, responded in the affirmative and cautioned that there was an “absolute prohibition” against it because such power rests exclusively with the legislature.
However, senior lawyer Rebecca John argued before the Delhi High Court that declaring the exception unconstitutional would not create a new offence, as the offense already exists – rather, it would merely add to the legal immunity currently enjoyed by a specific class of persons. Will cancel. In free thoughtWhile increasing the age of application of MRE from 15 to 18 years, the top court said that “by partially repealing Section 375 of the IPC, no new offense is being created”. The House of Lords had also reached the same conclusion while criminalizing marital rape in England.
published – October 17, 2024 09:10 am IST
