Context:
Recently, the Supreme Court clarified that until the exception provided in Section 63 of the Bharatiya Nyaya Sanhita (BNS) is declared unconstitutional, there is a serious legal dilemma regarding the prosecution of husbands for rape. The Court has scheduled the final hearing on this sensitive issue for three weeks later.
What is Marital Rape?
Marital rape refers to non-consensual sexual intercourse by a husband with his wife. The central legal controversy is whether marriage can constitute an exception to the requirement of consent in sexual relations.
The issue involves a conflict between individual bodily autonomy and dignity on one hand and the existing statutory framework protecting the marital relationship on the other.
Legal Position in India:
Under the erstwhile Section 375 of the Indian Penal Code (IPC), Exception 2 provided that sexual intercourse or sexual acts by a man with his own wife, where the wife was not below 15 years of age, did not constitute rape.
The Bharatiya Nyaya Sanhita (BNS), which replaced the IPC, has retained the marital rape exception under Section 63, while raising the relevant age threshold from 15 to 18 years.
Thus, under the present law, non-consensual sexual intercourse by an adult husband with his adult wife is generally not classified as the offence of rape.
Arguments in the Case:
Arguments favouring criminalisation:
Senior advocate Indira Jaising argued that existing law could be interpreted sufficiently broadly to justify prosecution where sexual violence occurs within marriage. She stressed that marriage should not deprive women of bodily autonomy and consent.
Government's position:
Solicitor General Tushar Mehta argued that the marital rape exception should continue until the Supreme Court determines its constitutional validity.
The Centre had earlier argued that criminalising marital rape could affect the institution of marriage and lead to serious disturbances in conjugal relationships.
Judicial Background:
The Karnataka High Court in 2022 allowed a husband to face rape charges for allegedly forcing sexual intercourse upon his wife, observing that marriage cannot provide an absolute licence to commit sexual violence.
The Delhi High Court had earlier delivered a split verdict on the constitutional validity of the marital rape exception.
The Supreme Court has decided to first hear the Karnataka case, followed by petitions directly challenging the constitutionality of the exception.
Conclusion:
The marital rape debate represents a difficult intersection of women's rights, individual autonomy, criminal law and constitutional governance. The Supreme Court's latest observations highlight that recognising an act as harmful is different from creating or expanding a criminal offence. The final resolution will require a careful balance between constitutional rights, legislative competence, individual dignity and protection of the institution of marriage.
