Syllabus
GS Paper 2 – Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.
Context
Centre submitted an affidavit at Supreme Court supporting Marital Rape Exception clause
Source
The Hindu| Editorial dated 8th October 2024
Unpacking the Centre’s affidavit on marital rape
The Marital Rape Exception (MRE) in the Bharatiya Nyaya Sanhita, 2023 (formerly Section 375 of the IPC) exempts sexual acts between a husband and wife from being considered rape if the wife is above 18. The issue is currently under challenge in the Supreme Court of India, with the Centre’s affidavit supporting MRE on various grounds. These arguments revolve around expectations within marriage, the sanctity of the institution of marriage, concerns about misuse, and questions of jurisdiction.
Indian Law and Marital Rape
- Definition of Rape: Section 375 of the IPC defines the acts that constitute rape by a man. The provision, however, lays down two exceptions:
- Decriminalises marital rape
- Medical procedures or interventions shall not constitute rape.
- Historical Context
- The IPC was implemented in India during British colonial rule in 1860.
- The MRE age threshold has evolved, originally set at 10 years, then raised to 15 years in 1940, and to 18 years in 2017.
- Limited Legal Recourse
- The Domestic Violence Act, 2005 hints at marital rape but provides only civil remedies, with no criminal proceedings available.
Marital Rape Treatment Around the World
- Global Trends
- 77 out of 185 countries criminalise marital rape, including Australia (1981), Canada (1983), South Africa (1993), and the USA (1993).
- United Nations’ Stance
- The UN urges countries to close legal loopholes, highlighting the home as a dangerous place for women.
Issues with Exception to Marital Rape
- Legal Fiction
- MRE creates a legal fiction where even if the elements of rape are met, the relationship of marriage exempts it from being rape.
- Arbitrary Distinction
- MRE arbitrarily distinguishes between married and unmarried women, denying married women the protections guaranteed to others.
- Live-in Relationships
- Sexual assault in live-in relationships is considered rape, but marriage grants immunity, highlighting the inconsistency.
Arguments Against Criminalising Marital Rape
- Misuse of Law
- Critics cite the misuse of laws like Section 498A (Dowry) as evidence of potential misuse if marital rape is criminalised.
- Burden of Proof
- There are concerns about the burden of proof in marital rape cases, as sexual intercourse is considered part of marriage.
- Gender Neutrality
- Arguments have been made to make the definition of rape gender-neutral, raising concerns about protection for husbands.
Since Marital Rape Exception provision is under challenge before the Supreme Court, Government had filed an affidavit in support of MRE
Government’s Key Arguments
- Far-Reaching Implications
- The Centre argues that criminalising marital rape could severely impact conjugal relationships and disrupt marriage.
- Parliamentary Decision
- The decision to retain MRE was made during the 2013 amendments to Section 375 after parliamentary deliberation.
- Different Consequences for Marriage
- The government distinguishes between violations of consent within marriage and outside it, suggesting separate legal provisions.
- Judicial Interference
- The Centre opposes judicial interference, emphasizing the socio-legal context of marriage and asserting that decisions should be left to Parliament.
- Disproportionate Punishment
- The affidavit suggests that labelling marital sexual acts as rape could lead to disproportionate punishment.
Analysing Merit of Government’s arguments
The Issue of ‘Expectation’
- Marriage and Expectation of Sexual Access
- The Centre argues that marriage creates a continuing expectation of sexual access, which differentiates married women from unmarried women.
- Subjectivity of ‘Reasonable Access’
- There is ambiguity in defining what constitutes reasonable sexual access and on what parameters it should be judged (subjective or objective).
- Comparison with Other Relationships
- It remains unclear why marriage creates such an expectation, whereas other intimate relationships, like live-in relationships, do not.
- Autonomy and Dignity
- The argument challenges the constitutionality of such an expectation, as individual sexual autonomy and dignity are protected under the Constitution.
Institution and Misuse
- Impact on Marriage as an Institution
- The Centre claims that criminalising marital rape would affect the sanctity of marriage, implying that impunity for the husband is central to its strength.
- Concern Over False Allegations
- There are concerns that criminalising marital rape would lead to false accusations, despite no evidence suggesting a causal link between marital rape laws and the weakening of marriage.
- Underreporting of Sexual Offences
- Statistics show that sexual offences are under-reported, and proving allegations is more challenging than disproving them, weakening the misuse argument.
Arguments on Jurisdiction
- Social vs. Legal Issue
- The Centre asserts that marital rape is a social issue, not a legal one, yet the involvement of Articles 14 and 21 (right to equality and life) suggests a legal dimension.
- Legislative Competence
- The Centre argues that deciding on criminalisation is within legislative competence, but the Court’s role is to assess the constitutionality of the law.
- MRE Subject to Constitutional Scrutiny
- MRE, being a part of the law, can be scrutinised under Part III of the Constitution, and the Court has the jurisdiction to strike it down if it violates fundamental rights.
Conclusion
The Centre’s support for MRE raises fundamental concerns about individual autonomy, equality, and the sanctity of marriage. While arguments against criminalising marital rape focus on the misuse of law and burden of proof, the inconsistency in treating married and unmarried women differently is clear. With global trends moving towards criminalisation and a strong constitutional challenge, the debate over MRE highlights critical questions of human rights, justice, and legal reform.
Related PYQ
What are the continued challenges for women in India against time and space? [ UPSC Civil Services Exam – Mains 2019]
Practice Question
Discuss the challenges posed by the Marital Rape Exception (MRE) in the Bharatiya Nyaya Sanhita, 2023, and its impact on women’s rights? [150 words]
Guidelines to Answer
- Introduction:
- Define Marital Rape Exception (MRE) under the Bharatiya Nyaya Sanhita.
- Mention its historical context, connecting it with Section 375 of the Indian Penal Code and its relevance today.
- Body:
- Challenges: Discuss the legal, social, and gender implications of MRE, including issues of consent, equality under Article 14, and autonomy under Article 21.
- Arguments for and against: Analyze the government’s stance (preserving marital sanctity, misuse of laws) and the opposing view (discrimination against married women).
- Comparative Perspective: Reference international laws where marital rape is criminalised, linking it to evolving human rights standards.
- Conclusion:
- Emphasize the need for legal reform to balance individual rights and marital relations, focusing on upholding constitutional values like equality and autonomy.