An exemption to marital rape

Indian Supreme Court Challenges Exception 2 to Section 375 of the Indian Penal Code, 1860

• A three-judge Bench, led by Chief Justice D.Y. Chandrachud, is hearing petitions challenging the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code, 1860 (IPC) and Exception 2 of Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023.
• The MRE, which grants legal immunity to Indian husbands, stipulates that sexual intercourse or acts by a man with his wife, provided she is not under 18 years of age, do not constitute rape.
• The MRE is a colonial relic, originating from the “doctrine of coverture” in English common law, which severely curtailed a married woman’s legal autonomy.
• The Supreme Court has questioned whether striking down the MRE would result in the creation of a new offence, as it would allow for the prosecution of husbands who engage in non-consensual sex with their wives.
• The MRE creates a legal fiction, denying married women the protection of laws that are extended to unmarried women.
• The petitioners argue that the MRE violates fundamental rights, including Article 14 which guarantees equal protection of laws to all persons.
• The MRE creates two distinct classes of victims of non-consensual sex by denying married women the protection of laws that are extended to unmarried women.
• The MRE also purportedly violates the right to privacy and bodily integrity under Article 21, which is fundamentally tied to individual self-determination.

Judicial Precedents on Marital Rape in India

• In March 2022, the Karnataka High Court ruled that a married man can be prosecuted for raping his wife.
• The case was based on a 2017 complaint by a woman against her husband, Hrishikesh Sahoo, accusing him of multiple sexual offences.
• The Karnataka government endorsed the High Court’s ruling.
• In May 2022, the Delhi High Court ruled the MRE unconstitutional, arguing it violates a woman’s bodily autonomy and expression.
• Justice C. Hari Shankar argued that within marriage, sexual relations are a “legitimate expectation” making the MRE legal.
• The Supreme Court recognized for the first time that “sexual assault by a man against his wife can constitute rape” in a separate case concerning an unmarried woman’s right to seek medical termination of pregnancy.
• The Union government’s latest Supreme Court affidavit is the first time it has opposed the striking down of the MRE.
• The Centre argued that marriage creates “a continuing expectation of reasonable sexual access” which is absent in the case of a stranger or another intimate relationship.
• The Centre argued that criminalising marital rape would affect the sanctity of the institution of marriage and potentially result in false allegations of marital rape.
• The question is whether striking down the MRE would result in the creation of a new offence.