WITH the Delhi High Court recently delivering a split verdict on a bunch of pleas seeking criminalisation of marital rape in the country, the debate on the issue has once again gained momentum. The matter has now reached the top court.
Justice Rajiv Shakdher, who headed the division bench dealing with the issue, struck down as unconstitutional Exception 2 to Section 375 of the Indian Penal Code, 1860, for being violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution. On the other hand, Justice C Hari Shankar rejected the plea to criminalise marital rape on the ground that the provision does not violate Article 14, but is rather based on an intelligible differentia.
The provision granting immunity to the husband from unwilling sexual intercourse with his spouse is enshrined under Exception 2 to S.375 (known as Marital Rape Exception or MRE), according to which sexual intercourse by a man with his wife, the wife not bein under 18 years, is not rape. The exception was carved out in order to favour the conjugal rights of the husband as reflected in the initial draft of the penal code framed by Lord Thomas B Macaulay in 1837. It was based on the common law principle enshrined in the Doctrine of Coverture and Implied Consent, as per which the legal rights of a woman were subsumed by her husband after marriage and by entering into marriage, a wife was considered to have given irrevocable consent to participation in sexual acts with her husband.
The genesis of marital rape exception is rooted in the doctrine expounded by Sir Matthew Hale, according to which a husband can never be held guilty of raping his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself up in this kind unto her husband which she cannot retract.
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