Will Recognising 'Marital Rape' Destabalise Institution Of Marriage? Supreme Court Asks
The top court today commenced hearing pleas seeking criminalisation of marital rape by striking down an exception under the law which protects a man from charge of rape if he forces his wife (who is not a minor) to have sex.
The Supreme Court on Thursday asked the counsels appearing for petitioners to counter Centre's stance that criminalising non-consensual intercourse within marriage will have the effect of destabilising the institution of marriage. The top court today commenced hearing pleas seeking criminalisation of marital rape by striking down an exception under the law which protects a man from charge of rape if he forces his wife (who is not a minor) to have sex with him without her consent.
Under the exception clause of Section 375 of the Indian Penal Code (IPC), now repealed and replaced by the Bharatiya Nyaya Sanhita (BNS), sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape. The petitioners have prayed to the court to strike down the Exception 2 to Section 63 (rape) which says that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.
A bench of Chief Justice of India DY Chandrachud and Justices J B Pardiwala and Manoj Misra on Thursday heard the petitioners and posed several questions to them.
"What do you have to say to it that criminalising non-consensual intercourse within marriage will have the effect of destabilising the institution of marriage which the Union has said in their counter?" CJI Chandrachud asked.
Senior Advocate Karuna Nundy appearing for petitioners opposed the Centre's stance and said that marriage is a private institution and with evolving time the institution has also evolved. She said the current position reduces a woman "to a legal subject or a sexual object."
Nundy cited several previous verdicts by the Supreme Court to support her arguments including the KS Puttaswamy judgment which recognised that the screen of privacy cannot be used to abuse the rights of women or cause gender based violence. She further cited the Supreme Court judgment on Adultery.
"It needs no mention that patriarchy and misogyny has no place in constitutional order," Nundy said.
Justice Pardiwala while listening to arguments enquired on charges that can be framed against husband except for rape: "Husband demands. Wife declines. Now when the husband confines her it is wrongful confinement. When he is hurting her, it could be a simple or grievous hurt. Section 323, 325, 352 comes into play. Criminal intimidation also comes to play. Now why all this so that the wife succumbs (to sex demand). Then she succumbs and the last act (forced sexual act) is not considered rape. So your argument is that if all these are offences then why not the last main part where she succumbs. That is what you are saying?"
Should Husband File For Divorce If Wife Refuses Sex
While hearing the arguments, Justice Pardiwala further asked if a husband should file for divorce if the wife refuses sex.
"So you are saying when a wife refuses sex the only option for the husband is to ask for divorce?" Justice Pardiwala asked.
Senior Advocate Karuna Nundy appearing for petitioners replied: "The husband may wait for the next day, talk to me or maybe be more charming. Ask me if I have a headache. He may ask me, "Do you think you might change your mind later..."
Nundy said that this is not a man vs woman fight, it is a fight against patriarchy.
"Our constitution is transforming with people transforming....as Maya Angelou said..if you know better do better. This is not a men vs woman case but it is a people vs patriarchy case," Nundy concluded her submissions.
Senior Advocate Colin Gonsalves said that the high court verdict which held that husband cannot be held for rape at all is contrary to six judgments of the superior court.
He also quoted from judgments of England and Wales, South Africa, US, Ireland and Nepal.
"Nepal answered the question squarely whether it affects institution of marriage if husband is penalised for rape.. Nepal Supreme Court holds that it is opposite as criminalising it purifies the institution of marriage...Then we go to France, Ireland, Germany, Netherlands...it is held that marital rape is rape, Then we have recommendations from Justice Verma committee."
Gonsalves asserted that if a woman says no it is no.
However, SG Tushar Mehta appearing for Centre quipped, "We are on a world tour here when the Indian context is different."
What Is Centre's Stance On Marital Rape?
In a preliminary affidavit, the Centre has opposed striking idea of criminalising marital rape stating that alternative remedies in law already exist to protect married women against sexual violence. The Centre refuted the petitioner's argument that marriage is a private institution and took a view that for preservation of the marital institution, the impugned Exception should be retained.
The Centre has submitted in the top court that attracting the offense of rape to the institution of marriage may be excessively harsh and disproportionate.
Affirming that the issue of marital rape falls under the ambit of legislative policy, the Centre has stated that the Parliament has different remedies, including criminal law provisions, to protect consent within marriage. Sections 354, 354A, 354B, 498A IPC, and the Protection of Women from Domestic Violence Act, 2005, ensures serious penal consequences for such violations.
The Centre has further stated that a woman's consent is not obliterated by virtue of marriage, but it states that the consequences of violation of consent within marriage shall differ from those outside marriage.
The top court will again resume hearing the marital rape case on next Tuesday.
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