Marital rape is antithetical to equality and autonomy

Relevance: GS Paper I

Why in News? 

A recent ruling by the Madhya Pradesh High Court has sparked renewed debate in India regarding the necessity of criminalizing marital rape.

More About the News: The Union government's hesitance to criminalize marital rape stems from concerns about destabilizing the institution of marriage. However, despite the Bharatiya Nyay Sanhita's reforms, the exception in the Indian Penal Code that legitimizes marital rape remains unchanged. This stance not only presupposes a woman’s consent but denies her agency.

Debate 

• Why the debate has started again: On May 1, 2024, the Madhya Pradesh High Court, in the case of Manish Sahu vs State of Madhya Pradesh, ruled that any sexual intercourse or act by a husband with his wife aged 15 or older cannot be considered rape. This decision has sparked renewed discussion on whether marital rape should be made a criminal offense in India. 
• Exception 2 of Section 375 of the Indian Penal Code, 1860: Exception 2 of Section 375 of the Indian Penal Code (which defines the offence of rape), which exempts sexual acts between a man and his wife above the age of 15 from rape charges, was amended to raise the age to 18 by the Supreme Court in Independent Thought vs Union of India (2017). In essence, this provision grants husbands immunity from rape charges for non-consensual sexual acts with their wives. While countries like the UK, US, Australia, and South Africa have criminalized marital rape, the Bharatiya Nyaya Sanhita of 2023, set to replace the Indian Penal Code in July, has not addressed this issue, leaving marital rape legal.
• Other ruling by Different High Courts: In 2021, the Chhattisgarh High Court, in the case of Dilip Pandey & others vs State of Chhattisgarh, stated that sexual intercourse or any sexual act with a wife by the husband would not constitute rape, even if it was forced or against her wishes. Conversely, the Gujarat High Court, in Nimeshbhai Bharatbhai Desai vs State of Gujarat (2018), recognized that a woman is not property and that a husband cannot violate her dignity by coercing her into sexual acts without her full and free consent.
• Outdated belief v/s Constitutional rights: Exception 2 of IPC Section 375, based on the outdated belief that men have control over women's bodies, assumes irrevocable consent from a wife to her husband for sexual activity. This disregards women's individual agency, contrary to the Constitutional guarantee of the right to life and non-discrimination based on gender. Marriage does not revoke a woman's right over her body.
• A missed opportunity: In 2022, a two-judge bench of the Delhi High Court in RIT Foundation vs Union of India missed an opportunity to safeguard the rights of married women. The court issued a split verdict on the constitutionality of India's marital rape exception. 
• Justice Rajiv Shakdher, while striking down the provision, emphasized that modern marriage embodies equality. He stated that by marrying, a woman does not relinquish her autonomy or grant unconditional consent to sexual intercourse. 
• According to him, consensual sex is fundamental to a healthy marital relationship, and non-consensual sex contradicts the principles of equality within marriage. He highlighted that a woman's right to withdraw consent is essential for her right to life and liberty, encompassing her ability to safeguard her physical and mental well-being. 
• However, Justice C. Hari Shankar, while affirming the constitutionality of the marital rape exception, clarified that the court lacks the authority to prescribe punishment or establish a new offense. Essentially, Justice Shankar shifted the responsibility to address this issue to the legislature.
• Legislative Efforts: The Justice Verma panel, established in 2012 to propose reforms in rape and sexual assault laws, recommended the removal of the marital rape exception. It argued that the relationship between the victim and the accused is irrelevant, and consent should not be presumed in marital relations. However, these recommendations were not accepted by Parliament. 
• In 2018, Member of Parliament Shashi Tharoor introduced a private member bill named ‘The Women’s Sexual, Reproductive and Menstrual Rights Bill,’ with the aim of criminalizing marital rape. However, the bill eventually lapsed.
• Government Stance: The Union government has hesitated to criminalize marital rape, expressing concerns that doing so could destabilize the institution of marriage. However, the evolving concept of marriage, focusing on equality and individual rights, suggests that the traditional gendered perspective is becoming outdated. It's evident that the institution of marriage can be safeguarded while also respecting the bodily autonomy of married women.
• Judicial Discourse: The Supreme Court's observations in X (former Twitter) vs The Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi (2022), have shed light on the flaw in the IPC’s marital-rape exception. The court rejected the notion that only strangers can be guilty of gender-based violence and recognized that intimate partner violence, including marital rape, is a harsh reality. Significantly, it ruled that rape, for the purposes of the Medical Termination of Pregnancy Act, 1971, includes marital rape.

Conclusion:

A Constitutional challenge to the marital-rape exception is currently pending before the Supreme Court. We anticipate the day when women will not face discrimination due to their marital status. It prompts us to reflect on whether we want a rights-based society where laws are equally applicable to everyone, or a country that upholds outdated patriarchal norms.