marital rape

 marital rape

It is very much within the jurisdiction of the judiciary to determine whether ‘marital rape exception’ violates a fundamental right

Marital Rape Exception (MRE), in Section 63

 Exception 2 of the Bharatiya Nyaya Sanhita, 2023 (Section 375, Exception 2 of the Indian Penal Code, 1860) 

states that ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.’ 

The issue of ‘expectation’

Most of the arguments made by the Centre 

It is stated that the differential treatment of married and unmarried women by MRE does not violate Article 14 of the Constitution of India (the right to equality) because married and unmarried women are not equally placed. 

The factum of marriage, it is argued, creates ‘a continuing expectation of reasonable sexual access’, which is absent in case of a stranger or of another intimate relationship. 

But As a legal argument, this is alarmingly vague

 Who gets to define what ‘reasonable sexual access’ means? And on what parameters? 

 Going by traditional gender norms, marriage also creates a continuing expectation that a husband will ‘provide for’ his wife. Surely that cannot be grounds for saying that if a wife takes her husband’s cars and sells them as scrap metal without his consent (perhaps even by force), she has not committed theft. 

It is also unclear why marriage creates such an expectation but other intimate relationships (for instance, live-in relationships) do not. 

‘Institution’ and ‘misuse’

sanctity of the institution of marriage 

recognition of marital rape as a criminal offence would affect the sanctity of the institution of marriage and potentially lead to false allegations of marital rape which would be difficult to disprove. 

As I have argued in this space, there is no evidence to suggest that the recognition of marital rape has a causal link with the strength of the institution of marriage. 

In any case, if the institution of marriage is so dependent on the impunity of a husband who rapes his wife, perhaps that is a reason to question its value and consider reforming it. 

The argument grounded in concerns of ‘misuse’ is a red herring

 Any criminal offence may be misused and the very purpose of a criminal trial is to determine whether an alleged offence was committed (usually, to a standard beyond reasonable doubt).

 Moreover, statistics show that sexual offences are generally under-reported, and the real challenge is in proving, rather than disproving, an allegation of rape.

Arguments on jurisdiction

marital rape is a social, not a legal issue 

The Centre’s affidavit also makes the claim that marital rape is a social, not a legal issue, and, therefore, not within the Court’s jurisdiction. 

Given that law regulates (nearly) every aspect of human life and society, it is not clear whether and how there can be such a watertight distinction between a social and a legal issue.

 criminal offence is a matter of legislative, rather than judicial 

A related argument is that the decision on what should or should not be a criminal offence is a matter of legislative, rather than judicial, competence. There is some merit to this claim. It may, however, prove largely irrelevant. 

 MRE, being a ‘law’, is subject to Part III of the Constitution of India

 In other words, the Court may not be empowered to decide whether marital rape should be a criminal offence or not, but it is very much within the jurisdiction of the Court to determine whether MRE violates a fundamental right, and to strike it down if it does.

Thus, the Centre’s affidavit rehashes many familiar arguments in favour of MRE, but the legal merit of these arguments is questionable.

source the hindu