Supreme Court to hear marital rape Cases

The Supreme Court (SC) is going to list a batch of petitions before it that pertain to matters related to ‘marital rape’.

What is a Marital Rape?

• Marital rape’ refers to the act of forcible sexual intercourse by a man with his wife without her consent.

Issues before the Court:

• Constitutional validity of the ‘marital rape immunity’: 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.
• Conflict on Section 375: PILs challenging the ‘marital rape exception’ allowed under IPC Section 375 which defines rape.
• Legality: While rape is a serious crime in India, marital rape is not illegal.

Assumption for exceptions in Marital Rape:

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.

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

• Against Fundamental Right of Women: 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.
• Burden on a married women and her Right of Consent: 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.
• Consent as ‘not’ irrevocable: 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.

What is the stand of the government?

• Protect Marriage as an Institution: 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.
• Married women can opt for alternate actions against Rape: 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.
• Basis of Law on restitution of conjugal rights: 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.

Judgements related to the Issue:

• On May 11, 2022, a Bench comprising of Justices Rajiv Shakdher and C. Hari Shankar, delivered a split verdict in the case. The bench stated that the exception was unconstitutional as it was discriminatory and violated a woman’s bodily autonomy and expression.
• The Karnataka High Court gave verdict taking basis of the Justice J.S. Verma Committee which recommended deleting the marital rape exception.
• The Court held that the exception was regressive and violated the Right to equality by treating the wife as subordinate to her husband.