Why is it in the news?

• The Supreme Court is set to hear petitions challenging the constitutionality of Exception 2 to Section 375 of the Indian Penal Code (IPC), which exempts husbands from rape prosecution if the wife is over 18. This challenge also extends to Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023.
• The central debate revolves around whether marriage implies automatic consent for sex and if that consent can be revoked in cases of sexual abuse.
• According to the National Family Health Survey-5, nearly one-third of married women in India have experienced physical or sexual violence from their husbands.

Background of the Marital Rape Exception (MRE)

• The Marital Rape Exception (MRE) originates from the colonial-era “doctrine of coverture” in English common law, which significantly restricted the legal autonomy of married women.
• In Joseph Shine vs Union of India (2018), the Supreme Court explained that this doctrine implied a merger of the legal identities of husband and wife, effectively suspending the legal existence of the woman.
• British jurist Matthew Hale articulated this idea in 1736, asserting that a husband could not be guilty of raping his wife because of “mutual matrimonial consent.”
• This rationale gained traction across British colonies; however, England abolished the MRE in 1991 with the landmark case R vs R, emphasizing that the doctrine no longer aligned with modern societal values. However, India has retained it despite long-standing advocacy for its removal.

Constitutional Challenges

• Petitioners argue that the MRE violates Article 14 (equality before the law) and Article 15(1) (non-discrimination), as it treats married women differently from unmarried women, denying them equal protection against sexual violence.
• They further contend that the MRE infringes on Article 21, which protects privacy and bodily autonomy.
• Previous Supreme Court rulings, such as in the Puttaswamy and Joseph Shine cases, emphasized that privacy includes the right to make personal decisions about one’s body and that family structures cannot justify violations of constitutional rights.

Judicial Precedents

• In Hrishikesh Sahoo vs State of Karnataka (2022), the Karnataka High Court ruled that husbands could be prosecuted for raping their wives, citing the Justice J.S. Verma Committee’s recommendation to abolish the MRE.
• In May 2022, the Delhi High Court issued a split verdict, with Justice Rajiv Shakdher deeming the MRE unconstitutional for violating bodily autonomy, while Justice C. Hari Shankar upheld it, arguing it reflected marital expectations.
• Moreover, the Supreme Court has already acknowledged that intimate partner violence, including rape, is a reality.

Government’s Position

• The Union government opposes removing the MRE, arguing that marriage creates a “continuing expectation of reasonable sexual access.” It warns that criminalising marital rape could harm the sanctity of marriage and lead to false allegations.
• The government also views marital rape as a social issue, suggesting it falls within the legislature’s domain rather than the judiciary’s.

Key Legal Question

• A key issue before the Supreme Court is whether striking down the MRE would create a new criminal offence, as it would allow husbands to be prosecuted for non-consensual sex with their wives.
• Some argue it would create a new offence, while others contend that it would merely remove the legal immunity currently afforded to husbands.
• The Supreme Court has previously struck down parts of laws without creating new offences, as seen in the Independent Thought case, which raised the marital rape exception age from 15 to 18.