Onus on Legislature to Make Marital Rape Punishable

Source: The Hindu 

Introduction 

The Supreme Court, on Wednesday, took up the constitutionally significant question of marital rape, guaranteeing safety and security to sexually abused married women, while simultaneously questioning whether courts can direct rape prosecutions against husbands when the penal law itself exempts marital rape from criminal liability. A three-judge Bench headed by Chief Justice of India (CJI) Surya Kant heard the matter, which arises out of an appeal against a 2022 decision of the Karnataka High Court. 

What is the Legal Exception for Marital Rape? 

• The second exception to Section 375 of the Indian Penal Code (IPC) states that "sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape." 
• Section 63 of the Bharatiya Nyaya Sanhita, which replaced the IPC in 2023, has carried forward this exemption for marital rape, while statutorily raising the age-threshold of the wife to 18 years. 
• The Justice J.S. Verma Committee Report of 2013 had found this exception regressive. 

What was the Background of the Case? 

• The primary case before the Bench is an appeal filed against a 2022 decision of the Karnataka High Court, which held that a husband could be charged with rape if he had forced himself on his wife. 
• The Karnataka High Court Bench had relied on the Justice J.S. Verma Committee report and observed that "a man is a man; an act is an act; rape is a rape, be it performed by a man the 'husband' on the woman 'wife'," and that "no exception under law can be so absolute that it becomes a licence for the commission of a crime against society." 
• Submissions Before the Court 
• Senior Advocate Indira Jaising, appearing for the wife in the Karnataka case, submitted that there was enough elasticity to interpret the present law and justify the High Court's decision to order prosecution for rape, also noting that the age of consent under Section 63 has been raised from 16 to 18 years. 
• Solicitor General Tushar Mehta submitted that the exception for marital rape must continue until the top court takes a final call on its reasonableness.

What did the Supreme Court Observe? 

• On the Individual Autonomy of Married Women: 
•  The Bench made a point of noting that it recognised the individual autonomy of married women, even as it questioned the manner in which the existing exception under the penal statutes could be judicially circumvented.
• On the Limits of Judicial Prosecution absent a Constitutional Declaration: 
•  Justice Joymalya Bagchi questioned whether a prosecution could be permitted on the score that the exception is unreasonable or manifestly arbitrary, before a constitutional court renders a verdict to that effect, asking, "Is it within the domain of a prosecutor to prosecute a person when there is a clear exemption under Section 375 or Section 63?"
• On the Status of the Existing Law: 
•  The Court observed that "this is the law as it stands, rightly or wrongly. It is a penal law," and questioned the High Court's logic in permitting prosecution before the constitutional validity of the exception was examined and, if necessary, declared ultra vires or read down. 
• On the Victim Status of a Person Subjected to Involuntary Intercourse in Marriage: 
•  Justice Bagchi observed that "a person in a matrimony subjected to involuntary sexual intercourse is definitely a victim," and framed the real question before the Court as being "whether the State defines it as 'rape' or not."
• On the Role of the Legislature: 
•  The Court mooted that it may be for the legislature, rather than the judiciary, to decide whether such an act should be made a crime.

What is Section 63 BNS? 

(BNS, Chapter V, Section 63 — Rape; corresponding to Section 375 of the erstwhile IPC) 

Acts Constituting Rape: 

A man is said to commit "rape" if he: 

• Penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman, or makes her do so with him or any other person; or 
• Inserts, to any extent, any object or a part of the body (not being the penis) into the vagina, urethra, or anus of a woman, or makes her do so with him or any other person; or 
• Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus, or any part of her body, or makes her do so with him or any other person; or 
• Applies his mouth to the vagina, anus, or urethra of a woman, or makes her do so with him or any other person. 

Circumstances Attracting the Offence: 

The above acts constitute rape when done under any of the following seven circumstances: 

• Against her will. 
• Without her consent. 
• With her consent, where such consent has been obtained by putting her, or any person in whom she is interested, in fear of death or hurt. 
• With her consent, where the man knows he is not her husband and her consent is given because she believes him to be another man to whom she is, or believes herself to be, lawfully married. 
• With her consent, where at the time of giving such consent, by reason of mental illness, intoxication, or administration of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. 
• With or without her consent, when she is under eighteen years of age. 
• When she is unable to communicate consent. 

Explanations: 

• Explanation 1: "Vagina" shall also include labia majora. 
• Explanation 2: Consent means an unequivocal voluntary agreement, where the woman, through words, gestures, or any other form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act; provided that a woman's failure to physically resist the act of penetration shall not, by that reason alone, be regarded as consent to the sexual activity. 

Exceptions: 

• Exception 1: A medical procedure or intervention does not constitute rape. 
• Exception 2: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.

Conclusion 

The Supreme Court's observations underscore the constitutional tension between recognising the bodily autonomy of married women and the settled statutory exception that currently shields marital rape from criminal liability under both the IPC and the Bharatiya Nyaya Sanhita. While the Bench has signalled sympathy for victims of involuntary sexual intercourse within marriage, it has been equally categorical that any prosecution ordered in the face of an express statutory exemption must first contend with the question of that exemption's constitutional validity — a determination it suggests may ultimately rest with Parliament rather than the courts. The outcome of this appeal is likely to have far-reaching implications for the criminalisation of marital rape in India.