Introduction

A three-judge Bench led by Chief Justice of India D.Y. Chandrachud is hearing petitions challenging the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code (IPC) and its counterpart in the Bharatiya Nyaya Sanhita (BNS), 2023. These provisions exempt marital rape from criminal prosecution, provided the wife is above 18 years of age.

Statistics on Marital Rape

• Limited Data: Marital rape statistics are scarce due to legal and social barriers.
• National Data: The National Family Health Survey-5 (2019-2021) reports one-third of married women (18-49 years) have faced physical or sexual violence from their husbands.
• Global Context: Approximately three-quarters of sexual assaults globally occur within intimate settings.

Genesis of the Marital Rape Exception (MRE)

• Colonial Origin: The MRE stems from the “doctrine of coverture” in English common law, where a woman’s legal existence was seen as merged with her husband’s after marriage.
• Matthew Hale’s Influence: In 1736, British jurist Matthew Hale argued that marital consent could not be retracted, a rationale adopted by several British colonies.
• Modern Developments: England abolished the MRE in 1991, citing societal changes in the perception of marriage and women’s autonomy.

Challenges Before the Supreme Court

• Section 375 and Exception 2: Section 375 of the IPC defines rape but exempts married men from being charged with rape if their wife is over 18 years.
• Petitioner’s Arguments:
  • Violation of Article 14: The exception discriminates between married and unmarried women.
  • Violation of Article 21: It infringes upon the right to privacy and bodily autonomy as recognized in K.S. Puttaswamy v. Union of India (2017).
  • Systemic Inequality: The MRE disregards the need for equal protection of all women from sexual violence.

Judicial Precedents

• Karnataka High Court (Hrishikesh Sahoo case): The court ruled that a husband could be prosecuted for rape, setting aside the MRE in cases of heinous sexual offences.
• Delhi High Court (2022): Delivered a split verdict—Justice Shakdher deemed the MRE unconstitutional, while Justice Hari Shankar upheld it, arguing it is essential for the institution of marriage.

The Centre’s Stand

• Opposition to Striking Down MRE: The Union government, for the first time, opposed the striking down of the MRE, arguing that marriage creates a “reasonable expectation of sexual access”.
• Potential Impact: It warned that criminalizing marital rape could disrupt marital sanctity and lead to false allegations.

Would a New Offence Be Created?

• Debate:
  • Justice Shankar’s View: Striking down the MRE would create a new offence, an authority reserved for the legislature.
  • Opposing View (Rebecca John): The removal of MRE wouldn’t create a new offence but would merely revoke the legal immunity enjoyed by husbands.

Conclusion

The case touches on sensitive issues of marriage, consent, and women’s rights. The outcome of the Supreme Court’s ruling could redefine marital relationships and legal protections for women in India.