The case regarding the marital rape exception (MRE)

Source: The post the case regarding the marital rape exception (MRE) has been created, based on the article “On the exception to marital rape” published in “The Hindu” on 18th October 2024

UPSC Syllabus Topic: GS Paper 2- Governance-mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

Context: The article discusses a Supreme Court case challenging the legal exception that protects husbands from being prosecuted for marital rape. It explains the origins of this exception, judicial precedents, and ongoing legal debates about its constitutionality and societal impact.

For detailed information on The Issue of Marital Rape read this article here

What is the case regarding the marital rape exception (MRE)?

1. The Supreme Court is hearing petitions challenging the marital rape exception (MRE) in Indian law.
   2. This exception, found in Section 375 of the Indian Penal Code (IPC), protects husbands from being charged with rape if their wife is over 18 years old.
   3. The challenge also extends to a similar provision in the new Bharatiya Nyaya Sanhita (BNS), 2023.

Where did MRE Law originate?

1. The Marital Rape Exception (MRE) law originated from English common law, specifically the “doctrine of coverture.” This doctrine treated the husband and wife as a single entity after marriage, denying women legal autonomy.
2. British jurist Matthew Hale codified the MRE in a 1736 treatise, stating that a husband could not rape his wife due to marital consent.
3. The doctrine was adopted by British colonies, including India.
4. England abolished the MRE in 1991 in R vs R, recognizing that it no longer reflected the modern view of marriage and women’s rights.

What are the major issues with MRE?

1. Violation of Equality (Article 14): The MRE creates unequal treatment by denying married women legal protection against non-consensual sex, unlike unmarried women.
2. Impact on Women’s Rights: Violates women’s right to privacy and bodily autonomy (Article 21), as seen in K.S. Puttaswamy and Joseph Shine cases.
3. High Incidence of Domestic Violence: Nearly one-third of married women (18-49 years) in India experience physical or sexual violence by their husbands (NFHS-5).
4. Colonial Legacy: The MRE stems from outdated colonial laws rooted in patriarchal views of marriage.

What are the Judicial views on MRE?

1. 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.
2. 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.”
3. Supreme Court (2022): Recognized marital rape in cases involving intimate partner violence, acknowledging that sexual assault by a husband could constitute rape.

What is the Government’s Stance?

1. The government opposes removing the marital rape exception (MRE) and has stated this position in a Supreme Court affidavit.
2. It argues that marriage creates an expectation of “reasonable sexual access” not found in other relationships.
3. The government acknowledges that violating a wife’s consent is wrong but considers labeling it as “rape” to be too harsh and disproportionate.
4. It warns that criminalizing marital rape could harm the sanctity of marriage and lead to false accusations.
5. The government’s stance echoes Justice C. Hari Shankar’s 2022 Delhi High Court opinion supporting the MRE’s legality.

What would happen if the Law changed?

1. If the Supreme Court strikes down the MRE, it will not create a new offense but would remove the husband’s immunity from prosecution for rape within marriage.
2. This change would align legal treatment of marital rape with that of other forms of sexual assault.

Question for practice:

Examine the implications of removing the Marital Rape Exception (MRE) in Indian law, particularly regarding its effects on gender equality, privacy rights, and the institution of marriage.