Onus on Legislature to Make Marital Rape Punishable: SC

Syllabus: GS1/ Society, GS2/ Polity and Governance

Context

• The Supreme Court guaranteed safety and security to sexually abused married women, but questioned whether courts can direct rape prosecutions against husbands when the penal law exempts marital rape from criminal liability.

SC Observations

• It recognised the individual autonomy of married women but the exception to Section 375 of the Indian Penal Code (IPC) states that sexual intercourse or sexual acts by a man with his wife, provided she is not under 18, do not constitute rape under the law.
  • Section 63 of the Bharatiya Nyaya Sanhita, which replaced the IPC in 2023, has carried forward the exemption.
• Keeping the Centre’s reservations in mind, the Bench said it will primarily examine two questions:
  • Whether a man can be prosecuted even if the marital rape remains an exception. 
  • Whether the exception itself is constitutionally valid.
• Marital rape has never been criminalised in India in view of the social matrix despite intense pressure from women’s groups. It is the only exception that blocks legal action in cases of rape.

Arguments For Criminalising Marital Rape

• 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.
  • In the State of Karnataka v. Krishnappa, the Supreme Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.
• 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.
• Human Rights Perspective: International human rights treaties like CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), to which India is a signatory, advocate for the criminalization of all forms of sexual violence, including within marriage.
• Global Precedent: Till date, more than 130 countries have criminalised marital rape, agreeing that marriage cannot mean freedom to commit sexual violence.
  • India, being a progressive democracy, should align with global standards on protecting women’s rights.

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: The law can be misused and may become an easy tool for harassing the husband.
• Difficulty of establishing consent: Opponents argue that determining whether consent was absent in a particular instance may be evidentially difficult, especially when the allegation is made after a prolonged period.
• 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).
  • Section 354: Punishes assault or force used to outrage a woman’s modesty.
  • Section 354A: Deals with sexual harassment.
  • Section 354B: Punishes assault or force used with the intent to disrobe a woman.
  • Section 498A: Addresses cruelty by a husband or his relatives.

Way Ahead

• While protecting the institution of marriage is important, laws must also ensure that women’s autonomy and consent are upheld. 
  • However merely criminalizing marital rape may not stop it as “moral and social awareness” plays a vital role in stopping such an act.
• India could look to global examples where marital rape has been criminalized, and learn from their approaches to implementing the law while minimizing misuse and ensuring justice.

Source: TH