MARITAL RAPE
1.Context
The court was hearing a clutch of four petitions challenging the constitutionality of the exception to Section 375. Apart from the petitioners, who include the All India Democratic Women’s Association (AIDWA), the court heard several intervenors, including a men’s rights organisation and amicus curiae senior advocates Rajshekhar Rao and Rebecca John.
2.What is the marital rape exemption?
Section 375 defines rape and lists seven notions of consent which, if vitiated, would constitute the offence of rape by a man.
However, the provision contains a crucial exemption: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
This exemption essentially allows a marital right to a husband who can with legal sanction exercise his right to consensual or non-consensual sex with his wife.
The exemption is also under challenge before the Gujarat High Court on the grounds that it undermines consent of a woman based on her marital status.
Separately, the Karnataka HC has allowed the framing of marital rape charges against a man despite the exemption in the law.
3.Government's Stand
Supreme Court challenging the constitutionality of Section 124A IPC (sedition), the Centre initially defended the rape exception and later changed its stand and told the court that it was reviewing the law, and that “wider deliberations are required on the issue”
Solicitor General Tushar Mehta brought to the court’s notice a 2019 committee set up by the Ministry of Home Affairs to review criminal laws in the country
The Delhi government argued in favour of retaining the marital rape exception. The government’s arguments spanned from protecting men from possible misuse of the law by wives, to protecting the institution of marriage.
4.Marital laws in other countries
The marital rape immunity is known to several post-colonial common law countries. Australia (1981), Canada (1983), and South Africa (1993) have enacted laws that criminalise marital rape.
In the United Kingdom, the House of Lords overturned the exception in 1991
In their landmark decision in the case known as R v R, the Lords took the view that the time had “arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim”
Subsequently, in 2003 marital rape was outlawed by legislation in the UK.
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Source:indianexpress
