Why in News?

The Supreme Court has decided to hear a batch of petitions regarding the criminalization of marital rape by a three-judge bench.

Background

• The Karnataka High Court has on an earlier occasion held that a husband was liable to be charged for rape under the Indian Penal Code,1860 (IPC) if he has forcible sex with his wife.
• The Karnataka Government had supported the High Court judgment in an affidavit in the Apex Court subsequently.
• The Karnataka Government had recommended the removal of the exception for marital rape and proposed that the law should specify that “marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation”.
• The Apex Court thereafter put ad-interim stay on the Karnataka High Court's judgment in the matter of Hrishikesh Sahoo v. State of Karnataka & Ors SLP(Crl) 4063/2022 (2022).
• In another split verdict of Delhi High Court, Justice C. Hari Shankar in the matter of RIT Foundation v. UOI and other connected matters (2022) held that striking down marital rape exception will result in creation of new offence, appeal against which is pending before the Top Court.

Legal Provisions

• Marital Rape - Marital rape or spousal rape is the act of sexual intercourse with one's spouse without consent. The lack of consent is the essential element, and it need not involve physical violence.
• The provision of rape is defined under Section 375 of the Indian Penal Code, 1860 whereas the punishment for the same is provided by Section 376.
• Section 375 - Rape—A man is said to commit “rape” if he—
• (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
• (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
• (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
• (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions.
• First. —Against her will.
• Secondly. — Without her consent.
• Thirdly. —With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
• Fourthly. —With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
• Fifthly. —With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
• Sixthly. — With or without her consent, when she is under eighteen years of age.
• Seventhly. —When she is unable to communicate consent.
• Explanation 1. —For the purposes of this section, “vagina” shall also include labia majora.
• Explanation 2—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
• The provision has two exceptions attached to it.
• Exception 1 - A medical procedure or intervention shall not constitute rape.
• Exception 2 - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape (This exception excludes marital rape from the ambit of Rape).
• In 2017, the Supreme Court in its landmark judgment of Independent Thought v. UOI, raised this age from 15 to 18 to bring our law in conformity with Protection of Children from Sexual Offences Act, 2012 and Prohibition of Child Marriage Act, 2006.

Justice JS Verma Committee, 2012

• In the aftermath of the 2012 gang rape in Delhi, known as the Nirbhaya Rape Case Justice J.S. Verma was appointed as the chairperson of a three-member commission tasked with reforming rape laws in India.
• While some of its recommendations helped shape the Criminal Law Amendment Act passed in 2013, other suggestions, including that on marital rape, were not acted upon.
• Some of the reforms suggested in management of cases related to crime against women are:
• A Rape Crisis Cell should be set up.
• The Cell should be immediately notified when an FIR in relation to sexual assault is made. The Cell must provide legal assistance to the victim.
• All police stations should have CCTVs at the entrance and in the questioning room.
• A complainant should be able to file FIRs online.
• Police officers should be duty bound to assist victims of sexual offences irrespective of the crime’s jurisdiction.
• Members of the public who help the victims should not be treated as wrongdoers.
• The police should be trained to deal with sexual offences appropriately.
• The number of police personnel should be increased. Community policing should be developed by providing training to volunteers.

Criminalization of Marital Rape in Other Countries

• Poland was the first country to explicitly criminalize marital rape in 1932.
• Australia in 1976 was the first common law country to pass reforms and criminalize marital rape.
• Since the 1980's several common law countries have criminalized marital rape like South Africa, Ireland, Israel, Ghana etc.

International Convention regarding Marital Rape

• In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) suggested that India should end marital exemption.
• Article 1 of CEDAW states "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
• Although India is not a signatory to CEDAW, it is still obliged to protect women irrespective of their marital status under Article 2(f).
• Article 2 - State Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:
• (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.