The Supreme Court of India began to hear a batch of petitions challenging the constitutional validity of the exception given to marital rape from criminal sanction on Thursday.
The challenge pertains to Section 375 of the Indian Penal Code (IPC) 1860, which has been replaced by Section 63 of the Bharatiya Nyaya Sanhita (BNS) 2023. The new BNS this year replaced the long-standing IPC. Both sections define rape but provide an exception whereby “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” In the BNS, the age has been increased from 15 to 18 years. The present case consists of both direct petitions to the Supreme Court, made under Article 32 of the Constitution, as well as appeals from various High Courts.
The roots of the marital rape exception, which was also covered in the petitioners’ arguments, can be traced back to 17th-century English jurist Matthew Hale. The exception’s rationale was that a wife gives unretractable matrimonial consent to her husband at the beginning of marriage, and thus any sexual activity within the sphere of marriage is unable of being considered rape. However, the marital rape exemption was abolished in the UK with the introduction of the Sexual Offences Act 2003. This legislation brought marital rape within the ambit of criminal sanction. However, in India, the exception endures.
The primary argument against the exception is that it undermines women’s autonomy and legal rights by creating an artificial distinction between whether the offense is committed within or beyond the bonds of marriage. Opponents of the exception assert the distinction infringes on the rights of married women, which is invalid from a constitutional standpoint. Further, the petitioners quoted from Joseph Shine v. Union of India (which decriminalized adultery in India) that “familial structures cannot be regarded as private spaces where constitutional rights are violated.”
The government’s defense mainly relies on the notion that marriage is an inviolable space, and that it is improper for the government to intervene in that space. In its affidavit, the government provided the argument that:
In [the] institution of marriage, there exists a continuing expectation … to have reasonable sexual access … though these expectations do not entitle the husband to coerce or force his wife into sex, against her or his will. At the same time, it is submitted, these obligations, expectations and considerations, which are completely absent in the case of a stranger who seeks sexual congress, or even from any other intimate relationship, constitutes as a sufficient basis for the Legislature to distinguish qualitatively between an incident of non-consensual sex within the marital sphere and without it.
The oral arguments on behalf of the petitioners are anticipated to be completed by October 22, after which the Indian government will begin with its arguments.
