Supreme Court questions logic behind marital rape exception in criminal law

Representative image | Photo credit: SUBRAMANIUM S

The Supreme Court questioned on Thursday October 17, 2024 the logic of a criminal law which considers kidnapping, criminal intimidation and the assault of a woman by her husband as crimes, but not the forced sexual act which occurs when the woman gives in under pressure. .

“Husband demands sex. The woman resists. She is unfairly confined. She is threatened and the victim of criminal intimidation. The woman eventually succumbs (under the pressure). So all preliminary acts are crimes under the law, but the single act of forced sex is not a crime? » asked Justice JB Pardiwala.

The question was asked on the first day of hearing a batch of petitions calling for the criminalization of non-consensual sexual acts within a marriage as “rape.”

The petitioners argue that the protection afforded to a man’s non-consensual sexual acts with his wife violates a woman’s right to bodily integrity, autonomy and dignity.

However, a recent affidavit filed by the Center said that punishing non-consensual sexual acts committed during a marriage and terming it as rape would impact the marital relationship and lead to “serious disruption” in the institution of marriage.

Read also: SC hearing on marital rape: “Marrying the victim does not absolve the rapist of his crime,” says Karuna Nundy

The petitions seek to nullify the exceptions of Section 375 of the Indian Penal Code (IPC) and Section 63 of the Bharatiya Nyaya Sanhita (BNS), which replaced the Colonial Code earlier this year.

The second exception in Section 375 (rape) of the IPC excludes from the definition of rape non-consensual sexual intercourse between a husband and his wife, if the latter is above 15 years of age. A similar exception to Article 63 (rape) of the BNS excludes forced sexual intercourse between a man and his wife, aged over 18, from being considered rape.

Chief Justice of India DY Chandrachud, who heads the three-judge bench also including Justice Manoj Misra, drew attention to the fact that the definition of rape was not limited to penile-vaginal intercourse and even included acts heinous such as the insertion of a foreign object into a woman.

“Insertion of a foreign object into a woman amounts to rape if committed by a stranger but not by her husband,” the chief justice pointed out, pointing out the incongruity of the law.

The Chief Justice questioned senior advocate Karuna Nundy, who represented the All India Democratic Women’s Association and opened the petitioners’ case, on the government’s argument that removing the martial rape exception would destroy the institution of marriage.

“Protecting a married woman from rape would not destroy the institution of marriage. Marriage is personal, not institutional… Sexual choices and consent are essential attributes of autonomy,” Ms. Nundy responded.

The bench questioned whether the court would create a new offense and enter the domain of Parliament by interpreting non-consensual sexual acts within a marriage as rape.

To this, Ms Nundy responded that the only thing the court would do by striking down the exceptions would be to bring the IPC and BNS into line with the Constitution.

She argued that the BNS and IPC recognized the offense of rape but excluded a man entirely on the basis of his status as a husband. His status alone gives him immunity from all charges.

“Sexual autonomy is at the heart of the freedoms guaranteed by the Constitution. Taking it away through marriage is contrary to constitutional values… A woman’s sexuality is not purely a physiological attribute. Even in the most private cases of marriage, the individual does not lose his or her dignity or individuality,” she argued.

Ms. Nundy argued that “a rapist is a rapist and marriage to his victim does not absolve him of the crime.”

She spoke about how the apex court struck down the penal provision relating to adultery, which was an example of a patriarchal provision. “A married woman was treated like chattel,” she argued.

Justice Pardiwala asks how one can determine whether or not a woman has consented to sexual intercourse within a marriage.

The lead lawyer noted that a woman’s consent to a sexual act would be an “unequivocal and voluntary agreement.” This threshold also applied to a married woman.

“The extent of harm to a woman if she is raped by a stranger, her husband or her separated husband is no different,” Ms Nundy said.

Senior advocate Rakesh Dwivedi, appearing for the state of Maharashtra, urged the court to refer the matter to a constitutional court. The CJI said the three-judge bench would examine this point.