The Supreme Court today is hearing petitions related to criminalization of marital rape. The petition referred to whether a man should have legal protection against forcing his wife to have an affair.
The case is being heard by a bench of CJI DY Chandrachud, Justice JB Pardiwala and Justice Manoj Mishra. During the hearing CJI said- Exception 2 says that anal sex with wife is not rape. On that the petitioner's counsel said that we are challenging this.
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CJI: It is rape when the wife is below 18 years and not rape when she is above 18 years. This is the difference between BNS and IPC.
Advocate Nandi: If the husband does anal sex. It is therefore exempt under Exception 2, even though it is not 'sexual activity'.
CJI: The law says whether vaginal sex or anal sex. It is not rape as long as it takes place in a marital relationship
Advocate Nandi: Section 63A also says that if a man inserts another man's penis into a woman's vagina, mouth, etc., that will also amount to rape.
CJI: But it will not fall under the exception.
Justice Pardiwala: The term sexual activity is not properly defined? Suppose a husband forces his wife to have sex with another man, would he fall under exception 2? No, he won't.
Advocate Nandi: It will come
Supreme Court: No, this is a misinterpretation.
CJI: If you revoke exception 2, you must tell us whether we are treating it as a separate offence.
Advocate Nandi: It is rape if a woman is forced to have physical intercourse with her husband, a stranger or a divorced husband. Having sex with a woman in a live-in relationship without consent is also rape. But if this happens to a married woman why is it not rape?
How did the case of marital rape reach the Supreme Court?
For a long time there was a demand for a new law on marital rape. 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 the other 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 physical intercourse by her husband. On May 11, 2022, two judges of the Delhi High Court delivered separate decisions. Justice Rajeev Shakdhar upheld the repeal 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 on the high court's door on 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 said 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 as 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).
