- A three-judge Bench of the Supreme Court is hearing petitions challenging the constitutionality of Exception 2 to Section 375 of the Indian Penal Code (IPC) and its equivalent in the Bharatiya Nyaya Sanhita (BNS), which exempts husbands from being prosecuted for non-consensual sex with their wives if the wife is over 18 years old.
- The challenge addresses the broader issue of sexual violence within marriage and the implications for fundamental rights.
- Marital rape data remains limited due to stigma and legal barriers, but surveys indicate nearly one-third of married women in India face physical or sexual violence from their husbands.
- Global statistics show a majority of sexual assaults occur in intimate settings.
- MRE is rooted in the colonial “doctrine of coverture” from English common law, where a married woman’s legal existence was subsumed under her husband’s.
- The petitioners argue this exemption violates:
- Article 14: by treating married and unmarried women unequally.
- Article 15(1): as it discriminates based on marital status.
- Article 21: by infringing on a woman’s right to bodily integrity and decisional autonomy, as reaffirmed in landmark privacy cases.
- In 2022, the Supreme Court acknowledged intimate partner violence, including marital rape, as a reality and rejected the idea that sexual violence is limited to strangers.
- The government opposes striking down the MRE, arguing that marriage involves reasonable expectations of sexual relations and criminalizing marital rape could harm the institution of marriage and lead to false allegations.
Dig Deeper: Read the definition of Rape and exceptions under section 375.
