Legally Bharat


Recently Solicitor General Tushar Mehta, representing the Central Government, informed the Supreme Court bench led by Chief Justice of India D.Y. Chandrachud, and Justices J.B. Pardiwala and Manoj Misra, that the government has not yet filed its response in the ongoing case. He mentioned that the matter wasn’t taken up in the previous week. This statement was made during a hearing where the Centre is expected to submit its stand on the issue.

On September 18, the Supreme Court of India stated that it will address the legality of the immunity granted to husbands from prosecution for marital rape based purely on legal principles, even if the Union government chooses not to file an affidavit. During the proceedings, a counsel highlighted that the Centre had yet to file its response, despite multiple opportunities. “Similar pleas have been filed in the Delhi High Court and Karnataka High Court, but they have been referred to a higher bench due to ongoing consideration by the Supreme Court,” said Neelam Singh, Advocate, High Court of Allahabad (Lucknow Bench).

Senior advocate Indira Jaising urged the court for an early hearing, prompting the bench to emphasize that it would resolve the question of law involved.

In July 2024, the Indian Penal Code (IPC) was replaced by the Bharatiya Nyaya Sanhita (BNS), which largely retained the controversial Marital Rape Exception. Both Karnataka High Court and Delhi High Court raised questions about the constitutionality of this exception.

While the Karnataka High Court ruled against the exception, the Delhi High Court delivered a split verdict. The Supreme Court has now consolidated these cases and will hear arguments on the matter. “While the Apex Court passed an interim stay on the High Court ruling, the State of Karnataka provided formal support for the High Court’s decision through the submission of an affidavit. Concurrently, at the Delhi High Court, an NGO named RIT Foundation, in collaboration with other parties, initiated petitions challenging the marital rape exception. However, the decision in the said petition was a split verdict from the Division Bench of the High Court,” said Aditya Chopra, Managing Partner, The Victoriam Legalis.

The Supreme Court sought centre’s response regarding petitions concerning the criminalization of marital rape in January 2023. “Initially, the Centre cited the social implications of the issue and displayed hesitance in submitting its response; however, it later agreed to do so,” said Ankit Rajgarhia, Principal Associate, Karanjawala & Co.

The Marital Rape exception, now under Section 63 of the BNS, continues to provide immunity to husbands from prosecution for rape within marriage. However, one notable change was the increase in the age of the wife — the exception now applies to women above 18 years of age, instead of the previous threshold of 15 years, aligning it with the legal age of adulthood.

While the age revision marks a small step forward, the core issue of whether a husband can be prosecuted for non-consensual sex with his wife remains unresolved. The retention of this exception has been widely criticized by legal experts and activists, who argue that it continues to violate fundamental rights and perpetuates gender inequality.

P.C. Roy, Associate at ASL Partners, emphasized the role of the Supreme Court as the guardian of fundamental rights. Roy believes the court is likely to declare the MRE unconstitutional, affirming that marriage does not provide a husband with a license to commit non-consensual sexual acts. However, Roy also suggests that the court may establish guidelines to prevent misuse of this ruling, ensuring a fair and balanced legal framework.

This Marital Rape Exception violates the fundamental rights of the wife i.e., Article 14, Article 15, Article 19(1)(a) and Article 21 of the Constitution of India.P.C. Roy, Associate at ASL Partners

The debate is between the cultural views on marriage and gender roles which often hinder recognition of marital rape, and modern perspectives emphasize equality, consent, and bodily autonomy, challenging traditional notions of irrevocable spousal consent. “The present case before the Supreme Court challenges the constitutionality of the marital rape exemption and involves complex questions that must be addressed before a judgment is delivered,” said Alay Razvi, Partner, Accord Juris.

This is a double-edged sword because if marital rape is declared unconstitutional, it may open the floodgates for cases being filed against husbands. However, if the exemption is upheld, it could suppress women in their marriages and leave them as victims of a crime.Alay Razvi, Partner, Accord Juris

The bench, led by Chief Justice D.Y. Chandrachud, asserted that the matter is one of law and would proceed regardless of the government’s position, stating, “They will have to argue on the point of law if they have chosen not to file an affidavit.” Thus, “The Supreme Court has made it clear that it will decide the legality of the immunity granted to husbands from prosecution for marital rape solely on legal principles, even if the Union government abstains from taking a stand on the issue,” said Anshuman Singh, AOR, Patna High Court.

The need to remove the marital rape exception has been a contentious issue in India. The Law Commission of India rejected its removal in 2000, despite considering several proposals for reforming laws on sexual violence. In 2012, the Justice JS Verma Committee, established after the Nirbhaya case to review rape laws, recommended criminalizing marital rape.

However, while some of its suggestions shaped the Criminal Law (Amendment) Act of 2013, the recommendation on marital rape was not implemented. “On one hand there is the contention of the Right to Equality and the aspect of giving agency to women over their bodies irrespective of their marital status, and on the other hand, is the possibility of misusing the law by wives if Marital Rape were to be criminalised and the possibility of disrupting the sacred Institution of Marriage,” said Anshuman Singh, AOR, Patna High Court.

He highlighted the case of State of Karnataka v. Krishnappa, which ruled that sexual assault violates an individual’s right to privacy and bodily sanctity. He also referenced Suchita Srivastava v. Chandigarh Administration, where the Court affirmed that personal decisions regarding sexual autonomy fall under Article 21, guaranteeing privacy and dignity.

Additionally, he cited Joseph Shine v. Union of India, where the Court struck down the adultery law, emphasizing that marriage does not confer ownership, and both spouses are independent individuals with equal rights.

Marital Rape should not be criminalized as it would completely shatter and rupture the Institution of marriage, cause disarray in families, besides the huge possibility of Misuse of the law in the same way that section 498A of the IPC.Anshuman Singh, AOR, Patna High Court

The recognition of marital rape as a crime could potentially redefine marital rights and personal autonomy in significant ways. It challenges the traditional view that marriage grants unconditional sexual consent between spouses, reinforcing the idea that individual rights to bodily autonomy and dignity are paramount, regardless of marital status. “A Supreme Court ruling on marital rape has the potential to redefine marital rights and personal autonomy in India,” said Priya Dhankhar, Senior Associate, SKV Law Offices.

Currently, the legal framework in India only recognizes cases related to spousal violence under the Domestic Violence Act, 1985 and thus, discriminates against married women by failing to protect them from non-consensual sex, violating their constitutional rights to equality and personal liberty.Priya Dhankhar, Senior Associate, SKV Law Offices

Recognizing marital rape as a crime is a crucial step towards gender equality and justice in India. This aligns India with international standards of human rights protection. “Countries such as the United States, the United Kingdom, South Africa, and Australia already criminalize marital rape, and this change would signal that marriage cannot be used as a shield for abuse,” said Priya Dhankhar, Senior Associate, SKV Law Offices.

The concept of implied consent within marriage has been a contentious topic for centuries. Traditionally, in many societies, marriage was seen as a contract that granted the husband wife’s implied consent. This notion of implied consent can be often rooted in cultural, religious, and legal norms. “The legal provisions, based on the idea of implied consent within marriage, are being contested as violating women’s fundamental rights to equality, dignity, and bodily autonomy under Articles 14, 15, and 21 of the Constitution of India,” said Ankit Rajgarhia, Principal Associate, Karanjawala & Co.

If the court rules against the immunity, it could set a historic precedent, marking a shift in India’s treatment of marital rape and establishing that the marital bond does not negate a woman’s right to say no to sexual intercourse.Ankit Rajgarhia, Principal Associate, Karanjawala & Co.

The potential removal of marital exemptions in India, particularly in the context of marital rape, presents a complex legal and social issue. While such a move would align India with international human rights standards and provide greater protection for women, it also raises concerns about potential misuse and societal readiness.

The court may opt for a gradual approach rather than an immediate, sweeping change, possibly combining elements of legal reform with social awareness initiatives.Arman Sharma, Partner, Anand Sharma and Associates

The idea of consent is the central pillar of bodily autonomy which should be an active and ongoing agreement, even within a marital relationship. Thus, even “Marriage does not imply continuous consent; a spouse maintains the right to autonomy over their own body,” said Aslam Ahmed, Partner, Singhania & Co.

Allowing marital rape to remain decriminalized undermines women’s rights and perpetuates the outdated notion that a wife is her husband’s property. This view not only violates fundamental human rights but also encroaches upon personal freedom and bodily autonomy.Aslam Ahmed, Partner, Singhania & Co.

There is a shift in social outlook which reflects a broader societal recognition of the importance of bodily autonomy, respect, and equality in all relationships. “Eliminating the immunity granted to husbands in cases of marital rape is vital for delivering justice, empowering women, and recognizing their autonomy. As societal norms shift toward equality and the protection of individual rights, it is essential that legislation reflects these values,” said Aslam Ahmed, Partner, Singhania & Co.

The potential misuse of marital rape laws is a complex issue that raises concerns about false accusations, abuse of power, and the breakdown of marriages.

The Apex Court is about to decide on the matter, and is likely to take a progressive approach pertaining to this subject, however, necessary checks and balances need to be added, if at all, such an offence is being criminalized in India, to ensure that while the said provision safeguards the right of the victims, it should not become another weapon to be used by vengeful spouses in matrimonial discords/litigations.Saurav Agrawal, Advocate, Delhi High Court

The court is considering whether this exception is constitutional. Specifically, they will examine if it violates Article 14 of the Constitution, which guarantees equality before the law. The ongoing debate suggests that this exception may be outdated and no longer aligns with modern ideas about marital rights and personal autonomy. “The court may consider whether this exception stands in violation of Article 14 of the Constitution, which ensures equality before the law. The legal discourse suggests that the provision may be outdated in light of contemporary views on marital rights and personal autonomy,” said Sonal Alagh, Partner Alagh & Kapoor Law Offices.

The judgment will likely explore the intersection of legal statutes with evolving societal norms and the imperative to uphold fundamental rights within the marital sphere.Sonal Alagh, Partner Alagh & Kapoor Law Offices

The Supreme Court’s upcoming ruling on marital rape is expected to address two key issues: constitutional interpretation, and societal and legal impact.

The Court will have to interpret the balance between the right to equality and dignity with the protection of marriage as an institution, considering the difference of opinion by the High Court.Shashank Agarwal, Advocate, Delhi High Court

The Supreme Court will need to strike a balance between two competing principles: The right to equality and dignity which suggests that all individuals, regardless of their marital status, should be treated equally under the law and have the right to live free from violence and discrimination and the protection of marriage as an institution which recognizes that marriage is a significant social institution and that it is important to uphold its integrity and stability.

Some judges may have prioritized the protection of marriage, while others may have placed greater emphasis on the individual rights of women.

The Supreme Court’s decision on marital rape exemptions in India will have far-reaching implications for the rights of women and the future of the institution of marriage. The Court’s ruling will need to carefully balance the competing interests of protecting women’s rights and upholding the integrity of marriage.

A decision to remove the exemptions would be a significant step towards gender equality and justice in India. However, it would also require careful consideration of the potential social and legal consequences.

  • Published On Sep 26, 2024 at 12:21 PM IST

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