SC Examines Marital Rape Criminalisation in India

SUPREME COURT EXAMINES CRIMINALISATION OF MARITAL RAPE

WHY IN THE NEWS ?

The Supreme Court is examining whether husbands can be prosecuted for marital rape, despite statutory exemption under existing penal law.The Bench recognised the sexual autonomy of married women but questioned whether courts can override an explicit legislative exemption, suggesting that criminalisation may ultimately require legislative action.

MARITAL RAPE AND THE SUPREME COURT’S CONCERN:

• Legal Exemption: Section 375 of the IPC exempted sexual intercourse by a man with his wife, provided the wife was not below the specified age, from the definition of rape.
• New Provision: The Bharatiya Nyaya Sanhita (BNS), 2023, under Section 63, retained the marital-rape exception while raising the relevant age threshold from 15 to 18 years.
• Autonomy Recognised: The Supreme Court acknowledged that a married woman subjected to involuntary sexual intercourse is a victim, while distinguishing victimhood from the statutory classification of the act as rape.
• Judicial Limits: The Bench questioned whether a constitutional court can permit criminal prosecution when Parliament has expressly created an exemption under penal legislation.
• Legislative Role: The Court indicated that determining whether marital rape should constitute a criminal offence may fall primarily within the domain of the legislature.

KARNATAKA CASE AND CONSTITUTIONAL DEBATE

• High Court Ruling: The Karnataka High Court, in 2022, held that a husband could face prosecution for rape for forcibly having sexual intercourse with his wife.
• Verma Committee: The High Court relied upon the Justice J.S. Verma Committee Report (2013), which had criticised the marital-rape exception as regressive.
• Equality Argument: The High Court reasoned that the identity of the perpetrator as a husband should not transform a non-consensual sexual act into a legally permissible act.
• Present Challenge: The Supreme Court is considering whether prosecution can proceed before examining the constitutional validity of the statutory exception.
• Divergent Positions: The wife’s counsel argued that existing provisions can be interpreted sufficiently broadly, while the Solicitor General supported retaining the exception until the Court reaches a final determination.