The Supreme Court will hear on Tuesday (September 24) whether a case should be filed against a husband for having forced intercourse with his wife. A bench of Chief Justice of India (CJI) DY Chandrachud and Justice JB Pardiwala will hear the matter.
The matter has reached the Supreme Court against two judgments of the Karnataka High Court and the Delhi High Court. Apart from this many more public interest litigations were filed. All these will be merged together and heard in the Supreme Court.
As per Exception 2 of Section 63 (Rape) of the Indian Penal Code (BNS), marichal rape is not an offence. However, the central government also has to file a reply in this matter. The Center says that a discussion is needed to change the law.
How did the case of marital rape reach the Supreme Court?
There has been a demand for a new law on marital rape for a long time. In the last two years, the demand has intensified after the decisions of the Delhi High Court and the Karnataka High Court. There are two main petitions which will be heard in the Supreme Court. One petition was filed by the husband, while in another case the petition was filed by the woman.
Delhi High Court Case: In the year 2022, a woman filed a petition in the Delhi High Court for forced sexual intercourse by her husband. On May 11, 2022, two judges of the Delhi High Court delivered separate decisions. Justice Rajeev Shakdhar upheld the scrapping of the marital rape exception. At the same time, Justice C Hari Shankar held that the concession granted to the husband was not unconstitutional and was based on a sensible distinction.
Karnataka High Court Case: In the Karnataka High Court, a husband knocked the door of the High Court on the allegations of rape leveled by his wife. On March 23, 2023, the Karnataka High Court refused to quash the rape charges against the husband. The High Court refused to accept the exception in this case. In this case, a single bench of Karnataka High Court, Justice M Nagprasanna, held that on facts the husband cannot be given absolute immunity for such sexual assault/rape.
What is marital rape, what is the law in India
Forced sexual intercourse by the husband without the consent of the wife is called marital rape. Marital rape is considered a form of domestic violence and sexual harassment against the wife. Marital rape is not considered a crime in India.
The petitioners have given 3 arguments for removing the exception from Section 63 of the BNS
The Indian government refused to criminalize marital rape In 2016, the Modi government rejected the idea of marital rape. The government said that it could not be implemented in the Indian context due to various reasons such as illiteracy in the country, different social customs, values, religious beliefs and the societal mindset of treating marriage as a rite.
In 2017, the government opposed the removal of the statutory exception to criminalize marital rape. The government argued that criminalizing marital rape would destabilize the institution of marriage and would be used by wives to punish their husbands.
During the ongoing hearing on marital rape in the Delhi High Court last year, the Center had said that since other countries have criminalized marital rape, there is no need for India to do the same.
In the 19th century, English law recognized marital rape According to Jonathan Haring's book Family Law (2014), historically in most parts of the world it was believed that a husband could not rape his wife, because the wife was considered the husband's property.
Until the 20th century, the laws of America and England considered that after marriage the rights of the wife merged with the rights of the husband. With the rise of feminist movements in the early 19th century, the idea also arose that women's right to consent to sexual relations between husband and wife after marriage was a fundamental right.
Image Credit: (Divya-Bhaskar): Images/graphics belong to (Divya-Bhaskar).
