Font size:
Print
Marital Rape
Context:
The provision of Marital Rape Exception(MRE) is under challenge before the Supreme Court of India and the Centre has filed an affidavit in support of MRE.
Current Legal Framework on MRE:
- The 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 Justice J.S. Verma Committee Report (2013), which was constituted in the aftermath of the Nirbhaya gang-rape case, recommended the criminalization of marital rape. However, the Indian government has yet to act on this recommendation.
- Domestic Violence Act (2005): Marital rape is only recognized under the Protection of Women from Domestic Violence Act, 2005, which provides civil remedies but does not criminalize marital rape.
Magnitude of Marital Rape in India and World:
- International Centre for Research on Women (2011): Reported that nearly 20% of Indian men have committed sexual violence against a female partner at least once.
- National Health and Family Survey (NFHS-4) (2015-16): 5.6% of women reported being physically forced by their husbands to engage in sexual intercourse against their will.
- National Health and Family Survey (NFHS-5): Found that 6% of women have experienced sexual violence, with over 80% of these women identifying their husbands as the perpetrators. Additionally, 30% of women between the ages of 18 and 49 reported experiencing physical violence since the age of 15.
- Global Status of Marital Rape Criminalization: By 2019, over 150 countries had criminalized marital rape including Australia, Canada, South Africa and UK.
Centres stand for MRE:
- MRE and Article 14 i.e Right to Equality : MRE does not violate Article 14 (right to equality) since married and unmarried women are not similarly placed.
- Sanctity of Marraige and Potential for Misuse:Criminalizing marital rape would undermine the sanctity of marriage and lead to false allegations.
- Outside Judicial domain in 2 grounds
- Social, Not Legal Issue : Marital rape is a social, not legal issue, and therefore outside the Court’s jurisdiction.
- Under Legislative Domain and not Judicial
- Lack of Eyewitnesses:As marital rape occurs within the private confines of marriage, lack of eyewitnesses presents significant challenges in proving the crime. However, this issue is also prevalent in other rape cases and those under the POCSO Act.
Argument against MRE:
- Violation of Fundamental Rights: Critics argue that the MRE violates the rights to equality (Article 14) and personal liberty (Article 21). Marital rape disregards a woman’s right to bodily autonomy and dignity, making her vulnerable to abuse within the institution of marriage.
- Changing Social Norms: The institution of marriage has evolved, and the notion of spousal consent must be seen within the larger framework of individual autonomy and dignity.
- Severe Form of Sexual Violence:Marital rape is a serious form of sexual violence that many progressive societies criminalize as a step toward gender justice.
- Perpetuation of Patriarchy:Decriminalizing marital rape reinforces patriarchal beliefs, treating wives as property, thereby allowing husbands to exert unchecked power over them.
- International Obligations: India is a signatory to several international conventions, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which call for the criminalization of all forms of violence against women, including marital rape.
Measures for addressing Marital Rape:
- Legal Reforms: Eliminate Section 375 (Exception) of the IPC to include marital rape in the definition of rape, enhancing legal protections for women against abusive spouses.
- Empowering Survivors: Ensure that legal changes provide necessary support for survivors, facilitating their recovery and protection from domestic violence and sexual abuse.
- Changing Attitudes: Promote a societal shift in attitudes towards marital rape, fostering awareness and condemnation of the issue among legal professionals and the general public.
Conclusion:
The argument that defining criminal offences is a legislative matter has some merit, but it may be largely irrelevant. The Court’s role is to assess the constitutionality of existing laws, such as the Marital Rape Exception (MRE), which falls under Part III of the Constitution of India. While the Court may not decide if marital rape should be criminalized, it can determine if MRE violates fundamental rights and strike it down if it does.