Unpacking the Centre’s affidavit on Marital Rape

The Marital Rape Exception (MRE), as outlined in the Bharatiya Nyaya Sanhita, 2023, continues to be contested in the Supreme Court of India. The Centre has filed an affidavit supporting the MRE, which has sparked significant legal and social debate regarding its implications for women's rights and the institution of marriage.

Expectation of Sexual Access

• Legal Ambiguity: The Centre argues that marriage creates an ‘expectation of reasonable sexual access,’ but fails to define what constitutes this expectation, raising concerns about its vagueness as a legal standard.
• Subjective vs. Objective: The distinction between subjective (individual perception) and objective (uniform standard) definitions of this expectation remains unclear, complicating its legal applicability.
• Gender Norms: The assertion that marriage creates specific expectations ignores that other intimate relationships, like live-in arrangements, can also foster similar expectations, questioning the rationale behind differential treatment.

Sanctity of Marriage

• Institutional Integrity: The Centre claims that recognizing marital rape could undermine the institution of marriage. However, no evidence links the strength of marriage to the impunity of husbands who commit marital rape.
• Misuse Concerns: The argument concerning potential misuse of marital rape allegations is misleading, as all criminal offenses can be misused; thus, proving guilt or innocence is a judicial responsibility.
• Reform Necessity: If marital impunity is essential for marriage, it raises questions about the institution's value and necessitates reevaluation and potential reform rather than protection under law.

Jurisdictional Arguments

• Social vs. Legal Issues: The Centre contends that marital rape is a social issue beyond judicial jurisdiction. However, law governs all aspects of life, making it challenging to separate social from legal concerns.
• Legislative Competence: While the Centre argues that defining criminal offenses lies within legislative power, the Court's role is to assess whether existing laws, like the MRE, violate fundamental rights under the Constitution.
• Constitutionality Assessment: The Supreme Court's task is to evaluate the constitutionality of MRE, focusing on its alignment with Articles 14 and 21 of the Constitution, rather than debating the necessity of criminalizing marital rape.

Practice Question

Q. Critically evaluate the implications of the Marital Rape Exception in Indian law, focusing on its legal, social, and constitutional dimensions. What reforms, if any, would you suggest to address the issues surrounding this exception?