SC to list marital rape petitions for hearing: What are the issues, arguments involved?


‘Marital rape’ refers to the act of forcible sexual intercourse by a man with his wife without her consent. While rape is a serious crime in India, marital rape is not illegal.

There are four different matters before the Supreme Court related to the subject. (More details on each of these below.)

* An appeal against a split verdict by a two-judge Bench of the Delhi High Court on a challenge to the constitutional validity of the ‘marital rape immunity’ in the Indian Penal Code.

* An appeal against a judgment by the Karnataka High Court that allowed the prosecution of a man for raping his wife.

* PILs challenging the ‘marital rape exception’ allowed under IPC Section 375 which defines rape.

* Various intervening petitions on the issue.

On January 16 this year, the court had sought the Centre’s response on petitions relating to criminalisation of marital rape, and on March 22, fixed the date of hearing as May 9.

What was the Delhi High Court case?

On May 11, 2022, a two-judge Bench of Justices Rajiv Shakdher and C Hari Shankar delivered a split verdict on a batch of petitions challenging the exception provided to marital rape in the IPC.

Justice Shakdher held that the exception is unconstitutional, while Justice Hari Shankar upheld its validity, saying the exception was “based on an intelligible differentia”. Since substantial questions of law were involved, the judges granted leave of appeal to the Supreme Court.

What exactly is this ‘exception’ to the rape law?

IPC Section 375 defines rape and lists seven notions of consent that, if vitiated, would constitute the offence of rape by a man.

The crucial exemption is this: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

This exemption essentially allows a marital right to a husband, who can with legal sanction exercise his right to consensual or non-consensual sex with his wife. The challenge to the exception is based on the argument that it undermines the consent of a woman based on her marital status, and is, therefore, unconstitutional.

And what was the Karnataka ruling that is under challenge?

On March 23, 2022, the Karnataka High Court had refused to quash charges of rape brought by a wife against her husband. The judgment defied the exception provided in the rape law—and while the court did not explicitly strike down the marital rape exception, it allowed the prosecution to go ahead.

The husband had moved the High Court after a trial court took cognizance of the offence under Section 376 (rape).

“A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’,” the single-judge Bench of Justice M Nagaprasanna of the Karnataka High Court said. The “age-old…regressive” thought that “husbands are the rulers of their wives, their body, mind and soul should be effaced,” the court said.

So what is the basis for the exception being in place?

Several post-colonial common law countries have the marital rape immunity. (‘Common law’ is the body of law that is created by judges through their written opinions, rather than through statutes or constitutions (statutory law). Common law, which is used interchangeably with ‘case law’, is based on judicial precedent. The United Kingdom and the Commonwealth countries, including India, are common law countries.)

The marital rape exception is premised on broadly two assumptions:

* Consent in perpetuity: This is the assumption that once married, a woman gives her permanent consent, which she cannot retract. This concept in the colonial-era law is rooted in the idea that a woman is the ‘property’ of the man who marries her.

* Expectation of sex: This is the assumption that a woman is duty-bound or is obligated to fulfil sexual responsibilities in a marriage, since the aim of marriage is procreation. And since the husband has a reasonable expectation of sex in a marriage, the provision implies that a woman cannot deny it.

Does the law exist in the UK itself, or in other Commonwealth countries?

The marital rape exception was overturned by the House of Lords in 1991.

Australia started to enact laws criminalising marital rape from 1981 onwards; Canada criminalised marital rape in 1983, and South Africa in 1993.

What are the main arguments against the exception to the IPC section on rape?

* It has been argued that the marital rape immunity stands against the light of the right to equality, the right to life with dignity, personhood, sexual, and personal autonomy — all of which are fundamental rights protected under Articles 14, 19 and 21 of the Constitution respectively.

* In the Delhi case, the petitioners argued that the exception creates an unreasonable classification between married and unmarried women and, by corollary, takes away the right of a married woman to give consent to a sexual activity.

* They also argued that since courts have recognised that consent can be withdrawn even during or in between a sexual act, the assumption of “consent in perpetuity” cannot be legally valid. On the issue of “reasonable expectation of sex”, the petitioners argued that even though there is a reasonable expectation of sex from a sex worker or other domestic relationships as well, consent is not irrevocable.

* The petitioners also argued that since the provision was inserted before the Constitution came into force, the provision cannot be presumed to be constitutional.

* In 2013, the J S Verma Committee, set up to look into criminal law reforms following the brutal gangrape and murder of a 23-year-old paramedic in Delhi in 2012, had recommended removing the marital rape exception. But the then Congress-led government did not change the law on marital rape.

What is the stand of the government?

In an affidavit in the Delhi case, the Centre defended marital rape immunity. Its arguments spanned from protecting men from possible misuse of the law by wives, to protecting the institution of marriage.

However, Solicitor General Tushar Mehta also told the court that wider deliberations are required on the issue. He brought to the court’s notice a 2019 committee set up by the Ministry of Home Affairs to review criminal laws in the country.

The Delhi government too defended the law on the ground that married women who might be subjected to rape by their husbands have other kinds of legal recourse such as filing for divorce or a case of domestic violence.

The government has also said that since the law on restitution of conjugal rights, a provision in the Hindu Marriage Act that allows a court to compel a spouse to cohabit with the husband, is valid, so is the exception to marital rape, by extension.

However, restitution of conjugal rights is a provision in personal laws and not in penal laws and even that provision is currently under challenge before the Supreme Court.


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