NEWS The marital rape exception is antithetical to women’s dignity, equality and autonomy.
- Recently the High Court of Chhattisgarh had decided on a criminal revision petition challenging the charges framed against the applicant husband.
- Initially, based on the allegations of the wife, charges were framed by a trial court against the husband.
- The charges were framed under Section 376 (rape), Section 377 (carnal intercourse against the order of nature) and Section 498A (cruelty towards wife by husband or his relatives) of the Indian Penal Code (IPC).
- The High Court then upheld charges under Sections 498A and 377 but discharged the husband under Section 376 on the ground that by virtue of Exception 2 to Section 375 (the definition of rape), sexual intercourse by a man with his own wife (provided she is over the age of 18) would not amount to the offence of rape.
- Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. The lack of consent is the essential element and need not involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse.
ISSUES WITH THE EXCEPTION OF MARITAL RAPE
- A husband may be tried for offences such as sexual harassment, molestation, voyeurism, and forcible disrobing in the same way as any other man.
- Even husband separated from his wife (though not divorced) may even be tried for rape (Section 376B).
- However, the marital rape exception is inconsistent with other sexual offences, which make no such exemption for marriage.
- The marital rape exception is an insult to the constitutional goals of individual autonomy, dignity and of gender equality enshrined in fundamental rights such as Article 21 (the right to life) and Article 14 (the right to equality).
- In Joseph Shine v. Union of India (2018), the Supreme Court held that the offence of adultery was unconstitutional because it was founded on the principle that a woman is her husband’s property after marriage.
- The marital rape exception betrays a similar patriarchal belief- that upon marriage, a wife’s right to personal and sexual autonomy, bodily integrity and human dignity are surrendered.
ARGUMENTS AGAINST THE EXCEPTION
- A commonly cited rationale for preserving the marital rape exemption is that recognising marital rape as a criminal offence would ‘destroy the institution of marriage’. This was the government’s defence in Independent Thought v. Union of India (2017).
- However the Supreme Court had rejected this claim and observed that, “Marriage is not institutional but personal – nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable.”
- Hence, there is a need for withdrawing the marital rape as an exception.
- Another argument frequently raised is that since marriage is a sexual relationship, determining the validity of marital rape allegations would be difficult.
- But even if the argument, that marriage is necessarily a sexual relationship is accepted, the argument does not hold water, as it is not marriage that creates a problem in adjudication but the dangerously erroneous belief that consent may simply be assumed from a woman’s clothes, her sexual history, or indeed, her relationship status.
- Thus, while the current law seems to operate under this misconception, marriage does not signify perpetual sexual consent.
- Therefore, the determination of consent or lack thereof in the context of a sexual interaction within marriage would be the same as in any other context.
- It is shocking that Exception 2 to Section 375 of the IPC survives to this day.
- Despite being antithetical to the liberal and progressive values of our Constitution, and violative of India’s international obligations under instruments such as the Convention on the Elimination of All Forms of Discrimination against Women, the provision underlines women’s subordination to men, especially within marriage.
- In 2017, the Supreme Court, in Independent Thought, had read down the exception so that husbands who raped their minor wives could no longer hide behind it.
- Though the judgment was just a small step towards striking down the legalisation of marital rape, yet it signals that it is high time that adult women are afforded the equal protection and dignity in marriage.
- Hence, legislature needs to take cognisance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating exceptions in Section 375 (Exception) of IPC.