#286: Marital Rape

One stop piece you need to read for this topic!!

This post will teach you all relevant pointers related to Marital Rape

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Exception 2, Section 63 Bharatiya Nyaya Sanhita

• Legal immunity to Indian husbands👇🏼

• “sexual intercourse or acts by a man with his wife, provided she is not under 18 years of age, do not constitute rape”.

What does data speak?👇🏼

• NFHS 5

1/3 of married women (18-49 years) experienced physical/sexual violence from husband😮

• Globally, 3/4th sexual assaults transpire within intimate settings🤯

Hm, okay CSEWhy, Why was marital rape exempted?🤔

Marital Rape Exception (MRE)

• Doctrine of coverture

- Curtails married woman's legal autonomy
- Origin: 1736 Britain
- 1991: England outlawed MRE

• Joseph Shine v/s UoI 2018

SC elucidated that DoC assumes husband-wife to be a single entity post marriage inferring:

“the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband”

Challenges in front of the SC

• How will a true victim be given justice?

• What if woman is subjected to cruelty?👇🏼

Let's look at legalities here

• Independent Thought v/s Union of India 2017

The exception of rape saw age of wife increase from 15 to 18

• Sec 85, BNS: criminalizes cruelty

• Civil remedies: Domestic Violence Act 2005

What is petitioners argument, CSEWhy?🤔

• Exception violates A14's equal protection of law

• This offends principle of substantive equality

• A15 violated leaving married women disadvantaged

• A21 violation as embodied in Puttaswamy Judgement 2017

Here you need to observe some imp. points👇🏼

Puttaswamy Judgement 2017

• Set Privacy as Fundamental Right

• Gives decisional autonomy on how one's body has to be used

Joseph Shine 2018

• Familial structures aren't private spaces where constitutional rights are violated

This poses a SERIOUS Q for SC😦 where you see another admission of SC

2022: Case concerning unmarried woman's right to seek medical termination of pregnancy

SC Noted:

“sexual assault by a man against his wife can constitute rape”

But there's one more party here: CENTRE GOVT.

What does it say, CSEWhy?👇🏼

Centre stated in an affidavit in a Delhi HC case

• Marriage creates “a continuing expectation of reasonable sexual access”

This access is absent in case of stranger

• Man has no right to violate wife's consent but terming such acts as rape is excessively harsh

• Criminalizing marital rape would affect sanctity of institution of marriage

• Any such criminalization can potentially result in false allegations of marital rape

Now, will SC create a new offense or criminalize it?🤔

• Striking down MRE = creating new offence

• To this, Justice Shankar opined "absolute proscription" towards this as this authority rests exclusively with legislature!👉👈

What's do you feel? Shall Marital Rape be a crime?

Drop your opinion in replies!!