THE HISTORICAL CONTEXT:
- The Marital Rape Exception (MRE) has its roots in the historical doctrine of coverture from English common law. This doctrine essentially deprived married women of their legal identity, merging it with that of their husbands. Under coverture, a married woman had no individual legal rights, including the right to own property or enter contracts independently.
- The concept of marital rape immunity was most famously articulated by Sir Matthew Hale, a British jurist, in his 1736 treatise. Hale wrote that “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract: the wife has given up herself in this kind unto her husband, which she cannot retract.”
CURRENT LEGAL PROVISIONS:
Section 375 of the IPC (now Section 63 of BNS) defines rape as sexual intercourse with a woman under seven specific circumstances, including:
- Against her will.
- Without her consent.
- With consent obtained under fear or misconception.
- When she cannot understand the act’s nature and consequences.
However, the law provides two significant exceptions to this definition:
- Medical Procedures: Any medical intervention or procedure is not considered rape.
- Marital Rape Exception: “Sexual intercourse or sexual acts by a man with his wife, the wife not being under eighteen years of age, is not rape.”
NOTE: It’s important to note that the age limit in this exception was raised from 15 to 18 years by the Supreme Court in the Independent Thought v. Union of India case (2017). However, this ruling did not address the broader issue of marital rape for adult women.
THE ISSUES:
- National Family Health Survey-5 findings: The National Family Health Survey-5 (2019-2021) reveals that nearly one-third of married women (18-49 years) in India have experienced physical or sexual violence from their husbands.
- Global statistics on sexual assault: Approximately three-quarters of all sexual assaults occur within intimate settings, often perpetrated by someone familiar to the survivor. India’s current stance on marital rape diverges from the global trend, with over 100 countries having criminalized the act. This global trend underscores the prevalence of sexual violence within domestic contexts, including marriages.
- Article 14 – Right to Equality: MRE creates an arbitrary distinction between married and unmarried women, violating the principle of equal protection. This classification fails the test of reasonable differentiation as it denies married women legal protections against sexual violence afforded to unmarried women.
- Article 15(1) – Non-discrimination: The MRE perpetuates gender-based discrimination by specifically disadvantaging married women. It reinforces harmful stereotypes about women’s autonomy within marriage and denies them equal rights to bodily integrity and sexual autonomy based on their marital status.
- Article 21 – Right to Privacy and Bodily Integrity: The MRE infringes upon a married woman’s right to make decisions about her body and sexual choices, violating her privacy and bodily integrity.
- Centre’s affidavit in Supreme Court: The Union government’s affidavit in the Supreme Court officially opposes striking down the MRE. The government argues that marriage creates “a continuing expectation of reasonable sexual access” absent in other relationships.
- Legislative vs. Judicial domain: The Centre argues that decisions on criminal offenses belong to the legislature, not the judiciary. However, the court’s role in assessing the constitutionality of existing laws is well established, potentially rendering this argument less relevant.
JUDICIAL PRECEDENTS:
- Karnataka High Court judgment (2022): In Hrishikesh Sahoo v. State of Karnataka (2022), the Karnataka High Court ruled that a married man could be prosecuted for raping his wife. The court relied on the Justice J.S. Verma Committee report and reasoned that no legal exception could be absolute enough to license crimes against society.
- Delhi High Court split verdict (2022): The Delhi High Court delivered a split verdict on the constitutionality of the MRE. Justice Rajiv Shakdher held it unconstitutional, stating it violates a woman’s bodily autonomy and expression. Conversely, Justice C. Hari Shankar opined that within marriage, sexual relations are a “legitimate expectation,” making the MRE legal.
- Supreme Court observations in other cases: In a case concerning an unmarried woman’s right to seek medical termination of pregnancy, the Supreme Court recognized that “sexual assault by a man against his wife can constitute rape.” This observation, though made in a different context, indicates the court’s evolving stance on marital rape.
THE WAY FORWARD:
- Legislative reform: Parliament should consider amending Section 63 of BNS to remove the marital rape exception, in line with recommendations from the Justice Verma Committee (2013) and the UN Committee on Elimination of Discrimination against Women (2014). Legislators should study models from countries like the UK, which criminalized marital rape in 1991, to develop a nuanced approach suitable for the Indian context.
- Judicial intervention: Recent judgments, particularly the Karnataka High Court’s ruling and the split verdict in the Delhi High Court, indicate a growing judicial recognition of the need to address marital rape. The Supreme Court’s observations in related cases suggest an evolving stance on this issue.The Supreme Court should provide a clear constitutional interpretation of the validity of the marital rape exception, addressing the split verdict from the Delhi High Court in 2022.
- Comprehensive support system: Create a network of crisis centers and shelters for married women facing sexual violence, as recommended by the National Commission for Women. Develop counseling and rehabilitation programs for both victims and perpetrators to address the root causes of marital sexual violence.
- Training for professionals: Develop protocols for medical examinations and evidence collection in marital rape cases, addressing the unique challenges they present.
- Phased Implementation: Given the sensitive nature of the issue, a phased approach to implementation could be considered. This might involve initially treating marital rape as a civil offense before moving towards full criminalization, allowing society time to adapt.
- International cooperation: Align Indian laws with international human rights standards, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
- Addressing potential misuse: Develop safeguards against possible misuse of marital rape laws, addressing concerns raised by men’s rights groups and the government. Ensure fair trial procedures that protect the rights of both the accused and the complainant.
THE CONCLUSION:
The Supreme Court decision would have the potential to significantly impact the legal landscape and the nation’s social fabric. Regardless of the outcome, addressing marital rape requires a nuanced, comprehensive approach that goes beyond mere legal pronouncements. It calls for a societal reckoning with long-held beliefs about marriage, consent, and gender equality.
UPSC PAST YEAR QUESTIONS:
Q.1 Do you think marriage as a sacrament is losing its value in Modern India? 2023
Q.2 Explain why suicide among young women is increasing in Indian society. 2023
Q.3 What are the continued challenges for women in India against time and space? 2019
MAINS PRACTICE QUESTION:
Q.1 “The Marital Rape Exception in Indian law represents a conflict between traditional notions of marriage and constitutional principles of equality and individual autonomy.” Critically examine.
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