Present status of petition on Marital Rape Exception (MRE)

In Context 

 Recently,Marital Rape Exception (MRE) was challenged in a petition  before a two-judge bench of Delhi High Court with Justice Rajiv Shakdher and Justice C Hari Shankar.

• The petitions challenging the exception to Section 375 of the IPC were filed by NGO RIT Foundation, All India Democratic Women’s Association and a marital rape victim.

Stand of judges 

•  Justice Shakdher held the exception to be unconstitutional and Justice Shankar upholding the exception.
  • Both judges felt that the sexual autonomy of women cannot be compromised.
  • Both found the idea of forcing the wife to have sex abhorrent.
• However, they differed on whether all non-consensual sex between a man and a woman would be rape. 
  • Justice Shakdher felt that one category of offenders would be immune to punishment if they committed an act, which has been clearly defined as rape in the rest of the section. 
    • He felt that, therefore, every woman subject to rape should be able to file a criminal case, regardless of the identity of the perpetrator.

•  Justice Shankar felt that marriage is a unique relationship that may justify differential treatment, carrying with it a “legitimate expectation of sex”. 
  • He considered sex between husband and wife as sacred and immune from interference by allegations of rape, especially as denial of sex without reason could amount to cruelty under family law.
  •  He felt that it would adversely affect the institution of marriage if the husband were to be considered the wife’s rapist.

Observations of Other courts 

• Other high courts have also considered this issue.
•  In Gujarat, in the case of Nimeshbhai Bharatbhai Desai (2018) the court held that the MRE did not make the offence rape, but held that a woman could prosecute her husband for unnatural offences (Section 377).
•  In Karnataka, in the case of Hrishikesh Sahoo earlier this year, the court said that the MRE was an unequal provision and that marital status should not be an excuse in cases of sexual assault.
  •  It did not interfere with the framing of charges of rape of the wife against the husband.

What is Section 375 of the Indian Penal Code (IPC ) and Exception?

• Section 375 of the IPC defines the acts that constitute rape by a man. 
• The provision, however, lays down two exceptions as well.
  • Exception 2 of Section 375 states that “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 October 2017, the Supreme Court of India increased the age to 18 years.
    • Apart from decriminalising marital rape, it mentions that medical procedures or interventions shall not constitute rape.

• In India, there are no legal provisions that define “marital rape”.

What is the timeline of hearings in the case?

• The first petitions to criminalise marital rape were filed in Delhi High Court in 2015. 
• In 2017, the central government filed an affidavit in the case, saying that criminalising marital rape “may destabilise the institution of marriage” and become a potential tool for harassing husbands.

The Marital Rape law/Safeguards  in India

• The Domestic Violence Act, 2005 hints at marital rape by any form of sexual abuse in a live-in or marriage relationship. 
  • However, it only provides for civil remedies. There is no way for marital rape victims in India to initiate criminal proceedings against their perpetrator.
• Law Commission of India in 2000,
  • The need to remove this marital rape exception was rejected by the Law Commission of India in 2000, while considering several proposals to reform India’s laws on sexual violence.
• JS Verma Committee 
  • Following the Nirbhaya gang rape and murder case in 2012, the Justice JS Verma Committee was tasked with proposing amendments to India’s rape laws. 
    • While some of its recommendations helped shape the Criminal Law (Amendment) Act passed in 2013, some suggestions, including that on marital rape, were not acted on.

How is marital rape treated around the world?

• According to Amnesty International data, 77 out of 185 (42%) countries criminalise marital rape through legislation. 
• In other countries, it is either not mentioned or is explicitly excluded from rape laws, both of which can lead to sexual violence.
  • Ten countries namely Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka and Tanzania expressly allow marital rape of a woman or a girl by her husband.
  • While 74 countries allow women to file complaints against their husbands, 34 out of 185 do not provide any such provisions. 
  • About a dozen countries allow rapists to avoid prosecution by marrying their victims.
• The United Nations has urged countries to end marital rape by closing legal loopholes, saying that “the home is one of the most dangerous places for women”.

Conclusion 

• There is definitely a lot of churn as far as marital rape is concerned.
•  The ideal situation is to have law reforms spearheaded by the legislature.
  • This would address issues that have arisen such as penalties for marital rape.
• As of now, there is a lower punishment for separated couples and the incongruity of having a higher punishment for married men and a lower one for separated men has been pointed out. 
• However, in the absence of legislative intervention, courts must step in and a decision from the Supreme Court on this important issue is hoped for.
• Recently two judges took very different stands
  • Both thus leading to a stalemate, which may be broken by a decision by the Supreme Court on appeal, or a law reform by Parliament.
  • Until then the law may stand.