CRIMINALISATION OF MARITAL RAPE

Why in the News?

The central government has opposed the criminalization of marital rape in the Supreme Court, arguing that this issue requires a “comprehensive approach” rather than a “strict legal approach.”

What’s in Today’s Article?

• Overview of marital rape
• (Section 375 of the IPC, marital rape laws, and arguments for and against)
• International examples
• Summary of the news (Key arguments by the central government)

Evolution of Section 375 of the IPC:

• Section 375 of the Indian Penal Code (IPC) outlines actions that are considered rape by a man.
• However, it includes two exceptions:
  • It decriminalizes marital rape.
  • It clarifies that medical interventions do not constitute rape.
• The IPC was introduced during British rule in 1860.
• Initially, the exception for marital rape applied to women over 10 years of age. In 1940, the age was raised to 15.
• However, in October 2017, the Supreme Court ruled that any sexual intercourse with a wife under 18 years of age would be considered rape, aligning the age of consent with 18 instead of 15.

History of Marital Rape Law in India:

• The Domestic Violence Act of 2005 alludes to marital rape through references to sexual abuse within marriage or live-in relationships.
• However, this law only provides civil remedies, leaving no criminal recourse for victims of marital rape in India.
• In 2000, the Law Commission of India’s 172nd report rejected the need to remove the marital rape exception, even though it considered multiple reforms to sexual violence laws.

Issues with the Marital Rape Exception:

• The exception creates a legal fiction where, even if all elements of rape are met, it is not considered rape if the parties are married.
• This exception is harmful and discriminatory toward women and is also arbitrary.
  • For example, an act committed five minutes before marriage is classified as rape, but the same act five minutes after marriage is not.
• Sexual assault is considered rape in a live-in or other intimate relationships, yet the law offers immunity once the relationship is formalized by marriage.
• Married women are thus denied the same legal protections that are afforded to others.

Arguments Against Criminalising Marital Rape:

• Misuse of law:
  • Critics argue that criminalising marital rape could lead to the misuse of the law, much like what has been observed with Section 498A, which deals with dowry cases.
    • In 2020, 1,11,549 cases were registered under 498A, with 5,520 cases deemed false by police. In total, 16,151 cases were dismissed for reasons such as mistakes of fact or law or being civil disputes.
    • Of 18,967 cases tried in court, 14,340 resulted in acquittals, while only 3,425 led to convictions.
    • The majority of cases under 498A remain pending.
• Burden of proof:
  • The issue of burden of proof complicates the criminalisation of marital rape, as intercourse is part of any marriage.
  • If marital rape becomes criminalized, the question arises of who carries the burden of proof and how it is established.
• Gender neutrality:
  • There have been calls to make the definition of ‘rape’ gender-neutral, and the same argument is made in the context of marital rape.
  • Even if the marital rape exception is removed or criminal provisions are added to the Domestic Violence Act, husbands would not be able to avail these protections.

How is Marital Rape Treated Around the World?

• According to Amnesty International, 77 out of 185 countries (42%) have laws that criminalize marital rape.
• Countries such as Australia (1981), Canada (1983), South Africa (1993), and the United States (1993) have enacted laws criminalizing marital rape.
• In some countries, marital rape is either not addressed or is explicitly excluded from rape laws.
• The United Nations has urged nations to close legal loopholes on marital rape, noting that “the home is one of the most dangerous places for women.”

News Summary:

• The central government has opposed the criminalisation of marital rape in the Supreme Court, arguing that this issue requires a more comprehensive socio-legal approach rather than a purely legal one.
• The government expressed concerns that criminalising marital rape could affect the institution of marriage and disrupt marital relationships.

 Key Points from the Government’s Arguments:

• Far-Reaching Implications:

The government warned that criminalising sexual acts between a husband and wife could have profound effects on conjugal relationships and destabilize the institution of marriage.

• Parliamentary Decision:

The government informed the court that Parliament had deliberately retained Exception 2 to Section 375 of the IPC, which excludes marital rape from being a criminal offense. This was decided during amendments made to Section 375 in 2013.

• Separate Legal Provisions for Consent within Marriage:

While acknowledging that violating a wife’s consent is wrong, the government argued that the legal consequences should differ within the framework of marriage.

Existing criminal laws, it said, are already in place to address violations of consent within marriage.

• Concerns over Judicial Interference:

The government urged the Supreme Court to refrain from interfering with Parliament’s decision to retain the marital rape exception, citing the socio-legal context of marriage in India.

• Disproportionate Punishment:

The government argued that labeling marital sexual acts as “rape” could be disproportionately harsh in the context of marriage, emphasizing the need to protect both the institution of marriage and the rights of women.

• Supreme Court’s Previous Ruling:

In 2022, the Supreme Court had recognized marital rape for the purposes of the Medical Termination of Pregnancy (MTP) Act, allowing women to seek abortions in cases of marital rape.

The government’s current stance, however, highlights a distinction between this ruling and the broader issue of criminalizing marital rape.

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