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Critical Topics and Their Significance for the UPSC CSE Examination on October 18, 2024

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On the exception to marital rape

For Preliminary Examination:  Current events of national and international importance

For Mains Examination: GS II - Indian Polity & Governance

Context:

A three-judge Bench headed by Chief Justice of India (CJI) D.Y. Chandrachud has begun hearing a batch of petitions challenging the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code, 1860 (IPC). The challenge also extends, by implication, to Exception 2 of Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023, which supersedes the former provision. These provisions grant legal immunity to Indian husbands by stipulating that “sexual intercourse or acts by a man with his wife, provided she is not under 18 years of age, do not constitute rape”.

Read about:

Marital Rape Exception (MRE)

Bharatiya Nyaya Sanhita (BNS)

Marital Law

Key takeaways:

A three-judge bench led by Chief Justice of India (CJI) D.Y. Chandrachud has started hearing petitions challenging the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code (IPC), 1860. This challenge also applies to Exception 2 of Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the IPC provision. These exceptions grant legal protection to husbands by stating that "sexual intercourse or acts by a man with his wife, provided she is not under 18 years of age, do not constitute rape."

What do the statistics show?

Data on marital rape is scarce due to stigma and legal hurdles, but available figures are troubling. The National Family Health Survey-5 (2019-2021) shows that nearly one-third of married women (aged 18-49) in India have experienced physical or sexual violence from their husbands. Globally, around three-quarters of sexual assaults occur in intimate settings, often by someone the survivor knows.

How did the exception originate?

The marital rape exception (MRE) is a colonial-era holdover from the "doctrine of coverture" in English common law, which severely restricted married women's legal autonomy. As explained by the Supreme Court in Joseph Shine v. Union of India (2018), this doctrine assumed that after marriage, a woman’s legal existence was absorbed into that of her husband. British jurist Matthew Hale’s 1736 treatise asserted that a husband could not be guilty of raping his wife, as she had given irrevocable consent through marriage. This reasoning influenced British colonies, but England abolished the MRE in 1991 with the landmark R v. R ruling.

What are the challenges before the Supreme Court?

Section 375 of the IPC defines seven conditions under which sexual intercourse constitutes rape, including when it occurs without the woman’s consent. Convictions lead to at least 10 years in prison, extendable to life imprisonment, with a possible fine. However, the law provides two exceptions: medical procedures and acts between a husband and wife if the wife is over 18 years of age.

Previously, the law exempted husbands if their wives were under 15, but in Independent Thought v. Union of India (2017), the Supreme Court raised this age to 18. Petitioners argue that the MRE violates fundamental rights, including the right to equality under Article 14, by creating two categories of sexual violence victims: married and unmarried women. They contend this distinction also violates the right to non-discrimination under Article 15(1).

Another critical issue is the violation of privacy and bodily autonomy under Article 21, as established in the Supreme Court’s Puttaswamy v. Union of India (2017) ruling, which affirmed the right to decisional a