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The Supreme Court said on Wednesday (July 19) that it will bring before it a set of petitions relating to matters relating to marital rape.
The term “marital rape” refers to forced sexual intercourse between a man and his wife without her consent. While rape is a serious crime in India, marital rape is not illegal.
There are four different matters before the Supreme Court related to the matter. (More details on each of these below.)
* Appeal against a split ruling by two Delhi High Court judges challenging the constitutional legality of “immunity for marital rape” in the Indian Penal Code.
* An appeal against a ruling by the Karnataka High Court that allowed a man to be prosecuted for rape by his wife.
*PILs defying the “marital rape exception” allowed under IPC Section 375 which defines rape.
* Various overlapping petitions on this issue.
On January 16 of this year, the court requested the center’s response to petitions regarding the criminalization of marital rape, and on March 22 set the hearing for May 9.
What was the Delhi High Court case?
On May 11, 2022, Justices Rajiv Shakir and C. Hari Shankar issued a split ruling on a set of petitions challenging the exception made for marital rape in the IPC.
Justice Shakir held the exception unconstitutional, while Justice Hari Shankar upheld its validity, saying that the exception was “based on a clear differentiation”. Since substantial legal issues had been touched upon, the justices granted leave to appeal to the Supreme Court.
What exactly is this “exception” to the rape law?
Section 375 of the IPC defines rape and lists seven concepts of consent that, if revoked, would constitute the offense of rape by a man.
The primary exception is: “Sexual intercourse or sexual acts by a man with his wife, the wife who was not under eighteen years of age, is not rape.”
This exemption essentially allows the marital right of the husband, who can, under legal sanction, exercise his right to have consensual or non-consensual sex with his wife. The challenge to the exception is based on the argument that it undermines women’s consent on the basis of their marital status, and is therefore unconstitutional.
What was the Karnataka ruling under challenge?
On 23 March 2022, the Karnataka High Court refused to set aside the rape charges filed by a wife against her husband. The ruling defies the exception set out in the rape law — and while the court did not explicitly drop the marital rape exception, it did allow the prosecution to move forward.
The husband moved to the High Court after the court learned of the crime under Section 376 (Rape).
“A man is a man. An action is an action; and rape is rape, whether done by a man or by the ‘husband’ on the ‘wife’ of the woman,” single Justice M. Nagaprasana of the Karnataka High Court said. The court said that the “old… reactionaries” thought that Husbands are the rulers of their wives, and their bodies, minds, and souls must be erased.”
So what is the basis for the existence of the exception?
Many post-colonial common law countries enjoy immunity from marital rape. (“Common law” is the body of law established by judges through their written opinions, rather than through statutes or constitutions (statutory law). Common law, used interchangeably with “case law”, is based on judicial precedent. United Kingdom and Commonwealth Countries, Including India, are common law countries.)
The marital rape exception rests broadly on two assumptions:
Perpetual Consent: This is the assumption that once married, a woman gives her perpetual consent, which she cannot retract. This concept in colonial-era law is rooted in the idea that a woman is the “property” of the man who marries her.
* Expectation of sex: This is the assumption that women are obligated or obligated to perform sexual responsibilities in marriage, because the goal of marriage is procreation. Since the husband has a reasonable expectation of sex in the marriage, the ruling means that the woman cannot deny it.
Is the law in the UK itself, or in other Commonwealth countries?
The House of Lords overturned the marital rape exception in 1991.
Australia began enacting laws criminalizing marital rape from 1981 onwards. Canada criminalized marital rape in 1983, and South Africa in 1993.
What are the main arguments against excluding the IPC section on rape?
* It has been argued that immunity from marital rape stands against the light of the right to equality, the right to life with dignity, personality, sexual and personal autonomy – all fundamental rights protected by Articles 14, 19 and 21 of the Constitution respectively.
* In the Delhi case, the petitioners argued that the exception creates an unreasonable categorization between married and unmarried women and, as a corollary, robs a married woman of the right to consent to sexual activity.
* They also argued that because courts have recognized that consent can be withdrawn even during or in between a sexual act, the presumption of “permanent consent” cannot be legally valid. On the issue of “reasonable expectation of sex,” the petitioners said that although there may be a reasonable expectation of sex from a sex worker or from other domestic relationships as well, consent is not final.
* The petitioners also argued that since the provision was included before the Constitution entered into force, the provision cannot be assumed to be constitutional.
* In 2013, the JS Verma Commission, set up to look into criminal law reforms in the aftermath of the brutal gangrape and murder of a 23-year-old paramedic in Delhi in 2012, recommended scrapping the marital rape exception. But the then Congress-led government did not change the marital rape law.
What is the government’s position?
In an affidavit in the Delhi case, the center pleaded immunity for marital rape. Her arguments ranged from protecting men from possible abuse of the law by wives, to protecting the institution of marriage.
However, Solicitor General Tushar Mehta told the court that a broader deliberation was needed on the issue. He informed the court of a 2019 committee set up by the Ministry of Interior to review the country’s criminal laws.
The Delhi government has also defended the law on the grounds that married women who may be raped by their husbands have other types of legal remedies such as filing for divorce or a domestic violence case.
The government also said that since the Restitution of Conjugal Rights Act, a provision in the Hindu Marriage Act that allows the court to force a spouse to cohabit with a spouse is in effect, and so does an exception for marital rape, by extension.
However, restitution of marital rights is a ruling in the personal status laws and not in the penal laws and even this ruling is currently under challenge before the Supreme Court.
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