Marital Rape: Challenging Exception 2 to Section 375 IPC and Its Constitutional Validity

MARITAL RAPE

Context:

• CJI along with two other judges has started hearing a petition challenging the constitutional validity of Exception 2 to section 375 of the IPC, 1860 and it also extends to Exception 2 of section 63 of the Bharatiya Nyaya Sanhita, 2023.

What is Exception 2 of Section 63 of the BNS 2023:

• Grant legal immunity to Indian husbands.
• It argues that sexual intercourse or acts by a husband with his wife, provided she is not a minor (under 18), don’t constitute rape.

Statistics on Marital Rape

• Data on Marital Rape remains limited due to stigma and legal barriers.
• NFHS-5 data indicates that nearly one third of married women (18-49 years) in India have experienced physical or sexual violence at the hands of their husbands.
• Global statistics: Approximately 3/4^th of sexual assaults.

Genesis of the exception?

• Colonial relic originating from the doctrine of coverture in English common law.
• Doctrine of Coverture

Note: Joseph Shine versus Union of India in 2018.

• One of the earliest instances of codification of the MRE can be traced back to British jurist Matthew Hale.
• He wrote in a 1736 treatise 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.”
• However, in 1991, England outlawed the MRE in the landmark case of R versus R underscoring that the common law doctrine no longer represented the true position of a wife in present-day society.

Challenges before the Supreme Court?

• There are two exceptions to section 375

• While the law initially granted immunity to husbands if their wives were under 15 years old, the Supreme Court revised this age limit to 18 years in Independent Thought versus Union of India (2017).
• The MRE, therefore, creates a legal fiction whereby, even if all the elements constituting the offence of rape are met, a conviction cannot take place if the parties are married and the wife is over 18 years of age.
• However, a married woman can seek recourse to other criminal law provisions such as Section 85 of the BNS which criminalizes subjecting a woman to “cruelty”.
• Civil remedies can also be availed 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”.

Demands of petitioners

• The exception is unconstitutional as it violates article 14.
• Creates two classes of victims of non-consensual sex.

• Offends the principle of substantive equality.
• Violates the right to non-discrimination of married women under article 15(1).
• It also violates right to privacy and bodily integrity under article 21.
• Goes against the ruling in K.S. Puttaswamy versus Union of India (2017).

• Goes against Joseph Shine versus Union of India (2018) where Supreme Court argued that “familial structures cannot be regarded as private spaces where constitutional rights are violated” and that doing so is “to obstruct the unfolding vision of the Constitution.”

Judicial Precedents?

• Hrishikesh Sahoo versus State of Karnataka 2022.

• In May 2022, Delhi High Court gave a split verdict.
• Following this split verdict, the petitioners moved the Supreme Court.

Petitioner Argument

1. Violation of Decisional Autonomy:

• Marital rape exception implies that marriage negates a woman’s right to consent.
• It reduces women to mere objects in the marital relationship, ignoring their autonomy over their bodies.

2. Breach of Constitutional Rights:

• The exception contradicts Article 14 (equality before the law) and Article 21 (right to life and personal liberty) of the Indian Constitution.
• It institutionalizes discrimination against married women by denying them the same protection against sexual violence available to others.

3. Global Commitments:

• India is a signatory to international conventions such as CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), which advocate for gender equality and criminalization of marital rape.
• Many countries, including the UK, South Africa, and Canada, have already criminalized marital rape.

4. Impact on Women’s Health and Dignity:

• Marital rape often leads to physical injuries, mental trauma, and reproductive health complications.
• Retaining the exception perpetuates the patriarchal notion that marriage grants irrevocable sexual rights over women.

5. Social Stigma:

• The exception undermines the fight against gender-based violence by normalizing sexual violence within marriage.
• It discourages women from seeking redress, fearing ostracism and lack of legal protection.

Centre Stand

• Union government opposed
• Issue needs wider consultations
• Would affect the sanctity of marriage.
• Classifying such act as rape is harsh and disproportionate

Arguments of critics

1. Preservation of Marital Sanctity:

• Critics argue that criminalizing marital rape could disrupt family structures.
• Counterpoint: A marriage cannot be sanctified at the cost of a woman’s bodily integrity and rights.

2. Misuse of Laws:

• Concerns over false allegations exist.
• Counterpoint: Mechanisms to address false accusations exist in the legal system. Denying justice to genuine victims is not a solution.

3. Cultural and Social Norms:

• Some argue that marital rape laws clash with Indian societal values.
• Counterpoint: Social norms should evolve to reflect principles of equality and dignity.

Way Forward

1. Legal Reforms:

• Amend Exception 2 of Section 63 to criminalize marital rape, treating it as a violation of individual autonomy and bodily rights.
• Ensure clarity in defining marital rape to prevent misuse and protect genuine cases.

2. Judicial Intervention:

• Encourage the judiciary to uphold constitutional rights by interpreting laws in favor of gender equality, as seen in the landmark judgments on privacy and dignity.

3. Awareness Campaigns:

• Conduct widespread awareness campaigns to educate people about the importance of consent within marriage.
• Involve community leaders, religious institutions, and NGOs to reshape societal attitudes.

4. Strengthening Support Systems:

• Establish robust support mechanisms for survivors, including legal aid, counseling services, and rehabilitation centers.
• Sensitize law enforcement and judiciary to handle marital rape cases with empathy and professionalism.

5. Learning from Global Practices:

• Study and adapt best practices from countries that have criminalized marital rape, ensuring laws align with Indian social realities.

Conclusion:

The discourse on marital rape challenges entrenched societal norms and legal doctrines rooted in colonial history. While critics argue that the immunity granted under Exception 2 to Section 375 IPC perpetuates gender inequality and violates constitutional rights, defenders cite the potential disruption of familial structures. The resolution of this issue by the Supreme Court will have profound implications for individual autonomy, gender justice, and the balance between societal values and constitutional principles. This debate underscores the urgency of safeguarding women’s dignity and autonomy in every sphere, public or private.

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Preferred UPSC Questions:

1. GS Paper II (Governance, Constitution, Polity):
   • Discuss the constitutional and legal challenges surrounding marital rape in India.
   • How does the exception to Section 375 IPC align or conflict with the principles of Article 14, 15, and 21?
2. GS Paper I (Society):
   • Examine the societal and cultural factors contributing to the perpetuation of marital rape immunity in India.
3. GS Paper IV (Ethics, Integrity, and Aptitude):
   • Analyze the ethical implications of granting legal immunity for marital rape in the context of individual autonomy and human dignity.

Note: This case is currently under prosecution, and the Supreme Court of India is actively hearing the petition challenging the constitutional validity of Exception 2 to Section 375 IPC and its equivalent in the Bharatiya Nyaya Sanhita, 2023. The final verdict is awaited, and the legal and societal implications remain a subject of intense deliberation.