Unpacking the centre's affidavit on Marital rape

09.10.2024

Unpacking the centre's affidavit on Marital rape

Why in the news?                        

Centre has filed an affidavit in Supreme Court, supporting Marital Rape Exception (MRE) in the Bharatiya Nyaya Sanhita (BNS).

Background:

• Section 63, Exception 2 of the Bharatiya Nyaya Sanhita, 2023 (Section 375, Exception 2 of the Indian Penal Code, 1860) states that ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.’

Centre’s Argument on Marital Rape and Critical Reflections:

• Differential Treatment Justification: The Centre argues that married and unmarried women are not equally placed under Article 14 (right to equality) because marriage creates a ‘continuing expectation of reasonable sexual access’.
• Vagueness of ‘Reasonable Sexual Access’: There is no clear definition of what ‘reasonable sexual access’ in centers argument entails. Is it subjective or objective? It raises questions on parameters like frequency and type of sexual acts.
• Legal Inadequacy: The argument is questionable as marriage may create various expectations (e.g., financial support), but violating those doesn’t provide immunity from criminal law. Moreover, this argument doesn’t apply to other intimate relationships like live-in partnerships, undermining its logic.

Impact on Marriage and Misuse of Law:

• Sanctity of Marriage: The Centre claims recognizing marital rape would undermine the institution of marriage. However, there is no evidence supporting this, and it raises questions about the institution’s value if it relies on impunity for marital rape.
• Fear of False Allegations: Concerns about misuse are a common argument in criminal law, but sexual offences are often under-reported, and proving rape remains the real challenge. The fear of misuse is a weak argument against criminalization.

Social vs. Legal Issue Argument:

• The Centre’s affidavit also makes the claim that marital rape is a social, not a legal issue, and, therefore, not within the Court’s jurisdiction. Given that law regulates (nearly) every aspect of human life and society, it is not clear whether and how there can be such a watertight distinction between a social and a legal issue
• The Centre suggests that what should or should not be a criminal offense is a legislative matter rather than judicial. On the other hand, MRE, being part of existing law, is subject to constitutional scrutiny under Part III of the Constitution. The Court’s jurisdiction includes assessing the constitutionality of MRE and determining if it infringes on fundamental rights.

                                                                    Source: The Hindu

Critically evaluate the implications of the Marital Rape Exception in Indian law, focusing on its legal, social, and constitutional dimensions. What reforms, if any, would you suggest to address the issues surrounding this exception?