Explained: The debate over marital rape

What is the News?

The Delhi High Court is hearing a challenge to the constitutional validity of the ‘marital rape immunity’ provided for in the Indian Penal Code.

What is Marital Rape?

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What is the case about?

A petition has been filed in the Delhi High Court challenging the constitutionality of the exception to Section 375 of the Indian Penal Code that deals with rape.

Why is there an exception to marital rape under Section 375?

Marital rape immunity is known to several post-colonial common law countries. It is premised on broadly two assumptions:

Consent in perpetuity: This is the assumption that on marriage a woman gives consent held by her husband in perpetuity, which she cannot retract. This concept in colonial-era law has roots in the antiquated idea that a woman is the property of her man.

The expectation of sex: This is the assumption that a woman is duty-bound or is obligated to fulfil sexual responsibilities in a marriage since the aim of marriage is procreation. Since the husband has a reasonable expectation of sex in a marriage, the provision implies that a woman cannot deny it.

Does the law exist in the UK and other post-colonial common law countries?

The marital rape exception was overturned by the House of Lords in 1991. Canada (1983), South Africa (1993), Australia (1981 onwards) enacted laws that criminalise marital rape.

What are the arguments before the court?

Firstly, the challenge to marital rape has been possible because of a number of Supreme Court rulings: a) 2017 Aadhaar ruling that cemented the right to privacy b) 2017 ruling that struck down the practice of instant triple talaq as unconstitutional c) 2018 ruling that held IPC Section 377 unconstitutional to the extent that it criminalised homosexuality among others.

Secondly, the Marital rape immunity stands against the right to equality, the right to life with dignity, personhood, sexual, and personal autonomy– all fundamental rights protected under Articles 14, 19 and 21 of the Constitution respectively. 

Thirdly, the marital rape exemption creates an unreasonable classification between married and unmarried women and, by corollary, takes away the right of a married woman to give consent to sexual activity.

Fourthly, the petitioners have argued that since courts have recognised that consent can be withdrawn even during/in-between a sexual act, the assumption of “consent in perpetuity” cannot be legally valid. 

Fifthly, the petitioners have also argued that since the provision was inserted before the Constitution came into force, the provision cannot be presumed to be constitutional.

Lastly, the court also needs to consider whether the protection of marriage and family can be a compelling or even legitimate interest for the state to the extent that it can make laws that violate fundamental rights. 

What is the government’s stand on Marital Rape? 

The Center has defended marital rape immunity. Its arguments spanned from protecting men from possible misuse of the law by wives, to protecting the institution of marriage. 

The Delhi government too has defended the law on the ground that married women who might be subjected to rape by their husbands have other legal recourses such as filing for divorce or a case of domestic violence. 

Source: This post is based on the article Explained: The debate over marital rapepublished in Indian Express on 20th January 2022.

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