Unpacking the Centre’s Marital Rape Accused

The Marital Rape Exception (MRE)
• The MRE, in Section 63, Exception 2 of the Bharatiya Nyaya Sanhita, 2023, states that sexual intercourse or acts by a man with his wife, the wife not under 18 years of age, is not rape.
• The provision is under challenge before the Supreme Court of India, and the Centre has filed an affidavit in support of MRE.
The Issue of ‘Expectation’
• The Centre argues that the differential treatment of married and unmarried women by MRE does not violate Article 14 of the Constitution of India (the right to equality).
• The factum of marriage creates a continuing expectation of reasonable sexual access, which is absent in case of a stranger or other intimate relationship.
• This expectation is a dubious claim but a sound legal argument against striking down MRE.
‘Institution’ and ‘Misuse’
• The Centre’s affidavit suggests that the recognition of marital rape as a criminal offence would affect the sanctity of the institution of marriage and potentially lead to false allegations of marital rape.
• There is no evidence to suggest that the recognition of marital rape has a causal link with the strength of the institution of marriage.
• The argument grounded in concerns of’misuse’ is a red herring.
Arguments on Jurisdiction
• The Centre’s affidavit makes the claim that marital rape is a social, not a legal issue, and therefore not within the Court’s jurisdiction.
• The decision on what should or should not be a criminal offence is a matter of legislative, rather than judicial, competence.
• The Court is not required to declare marital rape a criminal offence but to assess the constitutionality of an existing law.