The Supreme Court on Thursday, October 17, began hearing petitions challenging the constitutional validity of penal provisions that grant immunity from prosecution to a husband for forcing his wife, who is not a minor, to have sex with him. The court will continue hearings on this matter on October 22.
It is a constitutional question. There are two judgments before us and we have to decide. The core issue is the constitutional validity of the penal provisions,” the top court said while hearing the matter on Thursday. The court will continue hearings on this matter on October 22.
Indian government has opposed petitions in the top court that seek criminalisation of marital rape, saying it would be "excessively harsh".
Marital rape is outlawed in more than 100 countries, including Britain which criminalised it in 1991.
But India remains among the three dozen countries - along with Pakistan, Afghanistan and Saudi Arabia - where the law remains on the statute books.
A number of petitions have been filed in recent years calling for striking down Section 375 of the Indian Penal Code, which has been in existence since 1860. The law mentions several "exemptions" - or situations in which sex is not rape - and one of them is "by a man with his own wife" if she is not a minor.
But the Indian government, religious groups and men's rights activists have opposed any plans to amend the law saying consent for sex is "implied" in marriage and that a wife cannot retract it later.
The courts have given contradictory judgements, sometimes allowing a husband to be tried for rape while at others dismissing the petition.
The case came to the Supreme Court after the Delhi high court in 2022 delivered a split verdict. The top court began hearings in August.
The state's response in their 49-page affidavit submitted in the Supreme Court.
The affidavit noted that in a marriage, there was a "continuing expectation to have reasonable sexual access from one's spouse" and while this did not entitle a husband to coerce his wife into having sex, including marital rape under anti-rape laws would be "excessively harsh" and "disproportionate".
It added that there were existing laws that dealt with domestic violence, sexual harassment and assault that protected a married woman's rights.
The home ministry also said that marriage was a social institution and the issue raised in the petitions was more social than legal and hence it should be left to the parliament to formulate policy.
In case of Arnesh Kumar vs. State of Bihar (2014) which deeply analyses the misuse of Section 498A of the Indian Penal Code (IPC), 1860 (Now, Section 85 of Bhartiya Nyaya Sanhita, 2023) (hereinafter referred to as BNS) or cruelty and laid down guidelines to prevent them. Additionally, the Dowry Prohibition Act, 1961 was also briefly analysed in this case. Arnesh Kumar’s case is renowned for ensuring the protection of the incarcerated yet innocent accused. This case condones arbitrary arrests and lays down strict rules to be adhered to by the police. It emphasises on protection of the rights of the accused and the principle of ‘innocent until proven guilty’. It further emphasised that the power of the police is limited and that the fundamental rights of a suspect or an accused need to be upheld unequivocally. This case is rich in its interpretation of Section 41 of CrPC and Section 498A of IPC and hence becomes an important precedent for defence counsels to look up to.
The case of Arnesh Kumar vs. State of Bihar (2014) is an important judgement for constitutional and criminal cases. The court recognised the menace of arbitrary arrests even in non-cognisable offences. Further, the court analysed the misuse of Section 498A of IPC and Section 4 of the Dowry Prohibition Act by wives seeking to get back at their husbands or their relatives. The court observed the vulnerability of misuse of these Sections and observed that it was necessary to lay down guidelines. Though this case related to the offence of Domestic violence, the court laid down universal guidelines to be followed while arresting and detaining persons accused of offences punishable with seven years or lesser imprisonment. The court laid down that the police officers must prepare a checklist, specifying reasons for arrest in accordance with Section 41A of CrPC. Further, magistrates are also required to properly peruse the reasons provided by the police with the application for detention and state proper reasons for allowing or dismissing the same. Non-compliance by the police or magistrate with the above guidelines would lead to strict departmental action against them.
