In News: A two-judge Bench of the Delhi High Court has delivered a split verdict in a batch of petitions challenging the exception provided to marital rape in the Indian Penal Code
The court was hearing a clutch of four petitions challenging the constitutionality of the exception to Section 375
While one judge held that the exception under Section 375 of the IPC is unconstitutional, the other judge held that the provision is valid
What is the marital rape exemption?
Section 375 defines rape and lists seven notions of consent which, if vitiated (violated), would constitute the offence of rape by a man.
The provision contains a crucial exemption: “Sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
This exemption essentially allows a marital right to a husband who can with legal sanction exercise his right to consensual or non-consensual sex with his wife.
What happens when there is a spilt verdict?
In case of a split verdict, the case is heard by a larger Bench.
The larger Bench to which a split verdict goes can be a three-judge Bench of the High Court, or an appeal can be preferred before the Supreme Court.
Arguments for criminalizing Marital Rape
A marriage should not be viewed as a license for a husband to forcibly rape his wife with impunity.
The doctrine of Coverture: The marital exception to the IPC’s definition of rape was drafted based on Victorian patriarchal norms
The doctrine of Coverture – It did not allow married women to own property, and merged the identities of husband and wife
Against Basic Rights of Women – Indian women deserve to be treated equally under Article 14
Bodily Integrity is intrinsic to Article 21: A woman is entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy is an intrinsic part of Article 21 of the Constitution
The Justice Verma committee set up in the Nirbhaya gang-rape case and the UN Committee on Elimination of Discrimination Against Women (CEDAW) in 2013 had recommended that the Indian government should criminalize marital rape
Rape is rape, irrespective of the identity of the perpetrator, and the age of the survivor.
Arguments against criminalizing Marital Rape
Destabilize marriage as an institution – It will create anarchy in families and destabilize the institution of marriage
Misuse of law – It may become an easy tool for harassing the husbands by misusing the law similar to misuse of Section 498A (harassment caused to a married woman by her husband and in-laws) of IPC and the Protection of Women from Domestic Violence Act, 2005.
Diversity in Cultures of the states – Criminal law is in the Concurrent List and implemented by the states and there is a vast diversity in the cultures of these states
Way forward
The legislature should take cognizance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception) of IPC
Adopt multi-stakeholder approach while deciding the sentencing
Bringing behavioral changes awareness campaigns sensitizing the public regarding the importance of consent, medical care and rehabilitation
Previous Year Questions (PYQs)
Q.1) International Labour Organization’s Conventions 138 and 182 are related to? (2018)
Child Labour
Adaptation of agricultural practices to global climate change
