- Why is it in news?
Chief Justice of India D.Y. Chandrachud agreed to list early a series of
petitions seeking the criminalisation of marital rape.
UPSC SYLLABUS RELEVANCE:
- Prelims: Polity and Governance
- Mains: General Studies II – Structure, organization and functioning of the Executive and the Judiciary.
Important concepts :Criminalization of marital rape
Today’s prelims practice question:
Q. Consider the following statements:
1. The marital rape exception was included in IPC in the post-independence period.
2. The Doctrine of Coverture recognizes the individual legal identity of a woman after marriage.
Which among the statements mentioned above is/are correct?
A. 1 only
B. 2 only
C. Both 1 and 2
D. Neither 1 nor 2
Correct answer: D
Explanation: The IPC was implemented in India during British colonial rule in 1860. Under the first version of the rules, the marital rape exception was applicable to women over 10 years of age which was raised to 15 in 1940. According to the Doctrine of Coverture, a woman has no individual legal identity after marriage. Notably, the Doctrine of Coverture found a mention during the hearing when the Supreme Court of India struck down adultery as a criminal offence in 2018.
Mains PYQ exercise:
We are witnessing increasing instances of sexual violence against women in
the country. Despite existing legal provisions against it, the number of such
incidences is on the rise. Suggest some innovative measures to tackle this menace. (150 Words) (10 M) (2014)
Today’s mains practice question:
Do you think marital rape must be criminalized? Discuss your views.
DETAILED EXPLANATION OF IMPORTANT CONCEPTS
Section 375 of the Indian Penal Code (IPC):
- Section 375 of the IPC defines the acts that constitute rape by a man.
- The provision, however, lays down two exceptions as well.
- Apart from decriminalising marital rape, it mentions that medical procedures or interventions shall not constitute rape.
- Exception 2 of Section 375 of the Indian Penal Code states that “sexual intercourse by a man with his wife, and if the wife not being under fifteen years of age, is not rape”.
- In October 2017, the Supreme Court of India increased the age to 18 years.
Doctrine of Coverture:
- According to the Doctrine of Coverture, a woman has no individual legal identity after
marriage. - Notably, the Doctrine of Coverture found a mention during the hearing when the Supreme
Court of India struck down adultery as a criminal offence in 2018. - It was held that Section 497, that classified adultery as a crime, is based on the Doctrine of Coverture.
- This doctrine, although not recognised by the Constitution, holds that a woman loses her
identity and legal rights with marriage, is violative of her fundamental rights.
Domestic Violence Act, 2005:
- It hints at marital rape by any form of sexual abuse in a live-in or marriage relationship.
- However, it only provides for civil remedies.
- There is no way for marital rape victims in India to initiate criminal proceedings against their perpetrator.
Justice JS Verma Committee:
- In 2012, the Justice JS Verma Committee was tasked with proposing amendments to India’s rape laws.
- While some of it recommendations helped shape the Criminal Law (Amendment) Act passed in 2013, some suggestions, including that on marital rape, were not acted on.
Recent developments:
- Exception Two to Section 375 of the Indian Penal Code (IPC) decriminalises marital rape
and holds that sexual intercourse by a man with his own wife, who is not under 18 years of age, without her consent is not rape. - “A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’,” the Karnataka High Court had observed in its decision, saying an accused should be brought to trial regardless of the immunity in the penal code.
- A Division Bench of the Delhi High Court had, however, in May 2022, delivered a split verdict in a separate case on the identical issue.
- Justice Rajiv Shakdher, who headed the two-judge Bench, had struck down as unconstitutional the Exception Two to Section 375 of the Indian Penal Code (IPC).
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