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- Marital Rape Case; Supreme Court Hearing Update | DY Chandrachud Husband Wife
New Delhi55 minutes ago
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The central government says that declaring marital rape a crime will have a negative impact on marital relations.
Marital rape will be heard again in the Supreme Court on Wednesday. Earlier, on Thursday (October 17), there was a hearing for 3 hours on the petitions related to declaring marital rape a crime. The case was heard by a bench of CJI DY Chandrachud, Justice JB Pardiwala and Justice Manoj Mishra.
There are two petitioners in the case. Advocate Karuna Nandi of one of the petitioners had said – The husband is getting freedom in forcibly having sex with the wife only because the victim is the wife. This is a fight of public versus patriarchy, that is why we have come to court.
Whereas another advocate Gonsalves said – Marital rape has been considered a crime in the neighboring country Nepal. There it does not insult any marriage institution. Rather, marital abuse and rape dishonor the institution of marriage. If a woman (wife) says no to having a relationship, it means no.
In the last hearing on October 3, the government had opposed this, saying that doing so would have a negative impact on marital relations.
What happened in the hearing on October 17
A bench of CJI DY Chandrachud, Justice JB Pardiwala and Justice Manoj Mishra heard the case. Advocate Karuna Nandi and Advocate on behalf of the petitioner Colin Gonsalves presented the arguments.
CJI: When the wife is under 18 years of age, it is rape and when she is over 18 years of age, it is not. This is the difference between BNS and IPC.
Advocate Nandi: If the husband has anal sex, he is exempt under Exception 2, even though it is not ‘sexual activity’.
CJI: The law says that whether it is vaginal sex or anal sex. As long as it is done within marriage, it will not be rape.
Advocate Nandi: Section 63A also says that if a man inserts the penis of another man into the vagina, mouth etc. of a woman, that will also be rape.
CJI: But this will not come under the exception.
Justice Pardiwala: The term sexual activity is not defined correctly? Suppose a husband forces his wife to have sex with another man, will he come under Exception 2? No, he will not come.
Justice Pardiwala:What will happen if the wife refuses despite the husband’s demand (to have sex), feels that the husband should not have done so, and files a case?
Advocate Nandi: Right now my right to say ‘no’ takes away my right to say ‘yes’ freely and happily. This exception has turned me (the woman) into a sexual object.
Justice Pardiwala: So should the husband accept his wife’s refusal or file for divorce?
Advocate Nandi: The husband should wait till the next day and come more handsome. May ask me if I have a headache? (smiling)
Nandi: The husband is getting freedom in forcibly having sex with the wife only because the victim is the wife. This is not a battle of men versus women but of people versus patriarchy, that is why we have come to court. With this Nandi ended his arguments.
How did the marital rape case reach the Supreme Court? There was a demand for making new laws regarding marital rape for a long time. In the last two years, after the decisions of Delhi High Court and Karnataka High Court, its demand became more intense. There are two main petitions which are being heard in the Supreme Court. One petition was filed on behalf of the husband, while the other petition was filed by a woman in another case.
- Delhi High Court case: In the year 2022, a woman filed a petition in the Delhi High Court against forced sexual intercourse by her husband. On May 11, 2022, two judges of Delhi High Court gave separate decisions. Justice Rajeev Shakdhar had supported scrapping the exception for marital rape. At the same time, Justice C Hari Shankar said that the exemption given to the husband is not unconstitutional and is based on a sensible distinction.
- Karnataka High Court case: In the Karnataka High Court, a husband had approached the High Court on the allegations of rape made by his wife. On March 23, 2023, the Karnataka High Court refused to quash the rape charges against the husband. The High Court refused to accept the exception in this case. In this case, the single bench of Justice M Nagaprasanna of Karnataka High Court had said that on the basis of facts, the husband cannot be given complete immunity for such sexual assault/rape.
Petitioners have given 3 arguments to remove the exception from Section 63 of BNS
The government is against this, saying – this is not a legal but a social issue The government has opposed the demand to declare marital rape a crime. In an affidavit filed on October 3, the Center argued that if a man’s sexual intercourse with his wife is made punishable as rape, it could have a serious impact on marital relations. Marital rape does not need to be criminalized as many other punishments for it exist in Indian law.
Indian government has refused to consider marital rape as a crime. In 2016, the Modi government had rejected the idea of marital rape. The government had said that it could not be implemented in the Indian context due to various reasons such as illiteracy in the country, poverty, various social customs, values, religious beliefs and the mindset of the society to consider marriage as a sacrament.
In 2017, the government opposed the removal of the legal exception to decriminalize marital rape. The government had argued that criminalizing marital rape would destabilize the institution of marriage and would be used by wives to punish their husbands.
The Center had said during the ongoing hearing on marital rape in the Delhi High Court last year that just because other countries have declared marital rape a crime, India need not do the same.
In the 19th century, English law recognized marital rape as According to Jonathan Herring’s book Family Law (2014), historically in most parts of the world the belief was that a husband could not rape his wife, because the wife was considered the husband’s property.
Till the 20th century, the laws of America and England believed that after marriage, the rights of the wife get merged with the rights of the husband. With the rise of feminist movements in the early 19th century, the idea also arose that women’s right to consent to sexual relations between husband and wife after marriage was their fundamental right.
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