Marital Rape
Kartavya Desk Staff
Syllabus: Governance
Source: TH
Context: A three-judge Bench headed by Chief Justice of India (CJI) D.Y. Chandrachud has begun hearing a batch of petitions challenging the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code, 1860 (IPC).
About Section 375 of the Indian Penal Code (IPC):
• Definition of rape: Section 375 of the IPC defines acts constituting rape committed by a man against a woman.
• Exceptions: It provides two exceptions: Marital rape decriminalization: A man is not considered guilty of rape if he has sexual intercourse with his wife, provided she is not under 18 years of age. Medical procedures: Medical procedures or interventions are excluded from the definition of rape.
• Marital rape decriminalization: A man is not considered guilty of rape if he has sexual intercourse with his wife, provided she is not under 18 years of age.
• Medical procedures: Medical procedures or interventions are excluded from the definition of rape.
• Historical context: Originally enacted during British colonial rule in 1860, the age of marital consent was raised from 10 to 15 years in 1940, and later to 18 years through a 2017 Supreme Court ruling.
Laws governing marital rape:
• Section 375 of IPC: Defines rape but includes Exception 2, which decriminalizes marital rape for wives over 18, granting immunity to husbands for non-consensual sex within marriage.
• Independent Thought v. Union of India (2017): The Supreme Court raised the age of consent in marriage from 15 to 18 but did not criminalize marital rape.
• Section 85 of Bharatiya Nyaya Sanhita (BNS), 2023: Addresses cruelty towards women but doesn’t explicitly recognize marital rape as a criminal offense.
• Protection of Women from Domestic Violence Act, 2005: Provides civil remedies like protection orders and monetary compensation for victims of marital abuse but lacks provisions for criminal prosecution of marital rape.
Judicial cases and verdicts:
• Joseph Shine v. Union of India (2018): The Supreme Court dismantled parts of the doctrine of coverture, asserting that marriage shouldn’t limit a woman’s autonomy.
• The Supreme Court dismantled parts of the doctrine of coverture, asserting that marriage shouldn’t limit a woman’s autonomy.
• Hrishikesh Sahoo v. State of Karnataka (2022): The Karnataka High Court allowed prosecuting a husband for marital rape, citing the 2013 Justice J.S. Verma Committee Report. The ruling was stayed by the Supreme Court.
• The Karnataka High Court allowed prosecuting a husband for marital rape, citing the 2013 Justice J.S. Verma Committee Report. The ruling was stayed by the Supreme Court.
• Delhi High Court Split Verdict (2022): Justice Rajiv Shakdher ruled that the marital rape exception violates Article 21 and bodily autonomy. Justice C. Hari Shankar upheld the exception, citing that sexual relations are a legitimate marital expectation.
• Justice Rajiv Shakdher ruled that the marital rape exception violates Article 21 and bodily autonomy.
• Justice C. Hari Shankar upheld the exception, citing that sexual relations are a legitimate marital expectation.
Government’s arguments against criminalizing marital rape:
• Impact on marriage: The government argued that making marital sexual acts punishable as “rape” could severely impact conjugal relationships and the institution of marriage.
• Parliamentary decision: Parliament retained Exception 2 to Section 375 during the 2013 amendments, which exempted marital rape from being criminalized.
• Separate provisions for consent within marriage: The government acknowledged violations of consent but argued that the consequences should differ for marital relationships compared to non-marital relationships.
• Judicial interference: The government urged the Supreme Court to respect Parliament’s decision and not interfere in socio-legal matters concerning marriage.
• Disproportionate punishment: Criminalizing marital rape could lead to disproportionate punishment, as it may not consider the nuances of the marital context.
Arguments in favour of criminalizing marital rape:
• Violation of consent: Consent remains central to the definition of rape, and marriage should not negate the autonomy of a woman over her body.
• Arbitrary legal exception: The marital rape exception is arbitrary, as it discriminates against married women, depriving them of legal protections available to unmarried women.
• International norms: Around 77 countries, including Australia, Canada, and the USA, have criminalized marital rape, aligning with international human rights standards.
• Equal protection under law: The law should provide equal protection to all women, irrespective of their marital status.
• Supreme court’s recognition: The Supreme Court has already recognized marital rape under the Medical Termination of Pregnancy (MTP) Act, showing the need for broader criminal recognition.
Way ahead:
• Legislative review: Parliament should reconsider the current exception, focusing on gender justice and equal protection of women’s rights.
• Public dialogue: A broader socio-legal dialogue is essential to align marital rape laws with evolving social norms and international standards.
• Safeguards: Implement safeguards to prevent misuse, addressing concerns of false accusations while ensuring justice for victims of marital rape.
Conclusion:
Criminalizing marital rape is a necessary step to protect the dignity and rights of women. While respecting the institution of marriage, it is crucial to ensure consent and equality in marital relationships, moving toward a more just legal framework for all.
Insta Links:
• Criminalizing-marital-rape-in-India
• The-issue-of-marital-rape
We are witnessing increasing instances of sexual violence against women in the country. Despite existing legal provisions against it, the number of such incidences is on the rise. Suggest some innovative measures to tackle this menace. (UPSC-2014)