Context

The Union Government told the Supreme Court that criminalizing non-consensual sexual acts within marriage as ‘rape’ could disrupt conjugal relationships and destabilize the institution of marriage.

Introduction

The Supreme Court of India is examining the constitutionality of Section 63, Marital Rape Exception (MRE) in the Bharatiya Nyaya Sanhita, 2023, which exempts husbands from rape charges involving their wives over eighteen.

Arguments for Criminalising Marital Rape

  • Marriage is not a license: A marriage should not be viewed as a license for a husband to forcibly rape his wife with impunity.
  • Article 21 of Indian Constitution: A woman is entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy is an intrinsic part of Article 21 of the Constitution.
  • Article 14 of Indian Constitution: Indian women deserve to be treated equally under article 14 and an individual’s human rights do not deserve to be ignored by anyone, including by their spouse.
  • Global Precedent: Many countries have already criminalized marital rape, recognizing it as a form of sexual violence. India, being a progressive democracy, should align with global standards on protecting women’s rights.
  • National Family Health Survey-5 findings: The National Family Health Survey-5 (2019-2021) reveals that nearly one-third of married women (18-49 years) in India have experienced physical or sexual violence from their husbands.

Arguments against Criminalising Marital Rape

  • Destabilize marriage as an institution: It may create absolutely anarchy in families and destabilize the institution of marriage.
  • Misuse of law: It may become an easy tool for harassing the husbands by misusing the law similar to the misuse of section 498A of the IPC.
  • Implementation issues: Criminalizing marital rape will create issues like veracity of testimony, evidences in the courts etc.
  • The Ministry of Home Affairs argued that being married does not take away a woman’s right to give or refuse consent. There are other laws in place to protect a woman’s consent within marriage under Indian Penal Code (IPC).

What are the Judicial views on Marital Rape?

  • Karnataka High Court (2022): Ruled that a husband can be prosecuted for raping his wife, emphasizing no legal exception should license crimes, citing the 2013 Justice J.S. Verma Committee report.
  • Delhi High Court (2022): Issued a split verdict. Justice Shakdher found the MRE unconstitutional, citing bodily autonomy. Justice Shankar upheld it, seeing marital sex as a “legitimate expectation.”
  • Supreme Court (2022): Recognized marital rape in cases involving intimate partner violence, acknowledging that sexual assault by a husband could constitute rape.

Way Forward

  • Parliament should consider amending Section 63 of BNS to remove the marital rape exception, in line with recommendations from the Justice Verma Committee (2013) and the UN Committee on Elimination of Discrimination against Women (2014).
  • While protecting the institution of marriage is important, laws must also ensure that women’s autonomy and consent are upheld.

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