On the exception to marital rape
Context:
Recently, Supreme Court is hearing petitions challenging the constitutional validity of the marital rape exception (MRE) under Indian law.
Relevance:
GS-02 (Indian Polity)
Dimensions of the Article:
- Marital Rape Exception (MRE) and Its Origins
- Current Status of MRE in India
- Legal and Social Challenges in India
- Key Judicial Precedents and Ongoing Cases
- Government’s Stance and Concerns
1. Marital Rape Exception (MRE) and Its Origins
- It is a legal provision that protected husbands from being charged with rape if they have non-consensual sex with their wives, provided the wife is above 18 years of age.
- This exception is deeply rooted in colonial laws and outdated societal norms, and its origins can be traced back to the “doctrine of coverture” in British common law.
- Doctrine of Coverture:
- The doctrine of coverture was a legal framework in British common law that treated a married woman as having no independent legal existence from her husband.
- Upon marriage, a woman’s identity and rights were considered to be merged with those of her husband. This meant that a wife could not make legal decisions or enter contracts on her own. In essence, she was seen as an extension of her husband rather than an individual with full rights.
- This doctrine also extended to sexual rights, implying that a wife could not refuse sex to her husband, as her consent to marriage was seen as permanent consent to sexual relations.
2. Current Status of MRE in India:
- Initially, MRE was granted immunity for husbands if the wife was over 15 years of age.
- The Supreme Court later raised this age limit to 18 years in 2017 (in the Independent Thought vs Union of India case).
- However, the core issue remains that the Marital Rape Exception still allows husbands to legally force sex upon their wives without the risk of prosecution, provided the wife is legally an adult.
- Many argue that this provision violates women’s fundamental rights to equality, dignity, and bodily autonomy.
3. Legal and Social Challenges in India
- India’s legal framework on rape offers protections under Section 375, but the MRE creates an exception for married couples, essentially legalizing non-consensual sex in marriages where the wife is above 18.
- Other criminal provisions such as Section 85 of the Bharatiya Nyaya Sanhita (BNS) and civil remedies under the Domestic Violence Act address related abuses, but none treat marital rape as a criminal offense.
- Petitioners argue that the MRE violates fundamental rights, particularly Articles 14 (equality before law), 15 (non-discrimination), and 21 (right to life and privacy). They emphasize that the law creates two classes of women: those married and unmarried, who are treated differently regarding sexual violence.
4. Key Judicial Precedents and Ongoing Cases
- The Karnataka High Court’s 2022 ruling allowed for the prosecution of a husband for marital rape, challenging the exemption for heinous sexual offenses. The case was a landmark step, but it remains under appeal in the Supreme Court.
- In the same year, the Delhi High Court delivered a split verdict on the issue: one judge ruled that the MRE was unconstitutional, while another upheld it, arguing it as part of the legitimate expectations in marriage.
- The current petitions, now in front of the Supreme Court, ask whether striking down the MRE would lead to the creation of a “new” offense, or simply remove legal immunity that should never have existed in the first place.
5. Government’s Stance and Concerns
- The Union government, in its recent submissions, has opposed striking down the MRE. It argues that marriage includes “reasonable sexual access,” and classifying non-consensual marital sex as rape could destabilize marriages and invite false accusations.
- The government acknowledges that while no one has the right to violate a partner’s consent, labeling such acts as “rape” is seen as too severe.
- However, critics argue that the focus should be on individual rights, not protecting outdated notions of marriage. Bodily autonomy, they stress, should not be compromised for the sake of preserving traditional structures.
Way Forward:
- Reform Outdated Laws: The Supreme Court should align Indian law with modern understandings of equality and privacy. It should alter the present MRE and ensure that married women have the same protections against sexual violence as unmarried women.
- Awareness to change mindset: Awareness campaigns and education at grassroots levels are needed to challenge the patriarchal mindset that normalizes non-consensual sex in marriages.