Supreme Court Judgment and Gender Justice

(Mains Exam, General Studies Paper- 2: Welfare schemes for vulnerable sections of the population by the Centre and the States and the performance of these schemes; Mechanisms, laws, institutions and bodies constituted for the protection and betterment of these vulnerable sections)

Reference

Recently, the Supreme Court (SC) has upheld the validity of Exception 2 of Section 375 of the Indian Penal Code.

Exception 2 of Section 375 of the Indian Penal Code

If the husband has sexual intercourse with his wife (whose age is above 18 years) without consent, then it will not be considered rape.
- That is, in the case of a married woman and above 18 years of age, the husband is exempted from the crime of rape.
This provision is known as the Marital Rape Exception.
Sex with a wife under the age of 18 is considered rape under Section 375 (as per SC’s Independent Thought vs Union of India, 2017).

Recent Supreme Court Judgments

Majority View (2:1)

Exception 2 to Section 375 of the Indian Penal Code is a matter of legislative policy, it cannot be struck down by the judiciary.
Criminalising marital rape could have wide social consequences, which would require parliamentary debate.

Minority View (Justice Nagarathna)

This exception violates Articles 14 (equality), 15 (non-discrimination) and 21 (right to dignity and bodily autonomy).
Marriage does not mean irrevocable consent.

Constitutional Issues

Gender equality: Sexual harassment law treats married and unmarried women differently, which violates equality before the law.
Bodily autonomy: Article 21 protects personal liberty and sexual autonomy regardless of marital status.
International obligations: The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and other human rights treaties call for the abolition of the marital rape exemption.

Arguments for and against retaining the exception

Pros

Potential misuse of the law in marital disputes
impact on the sanctity of the institution of marriage and family
Availability of civil remedies under domestic violence laws

Cons

Marriage cannot be a defence to sexual violence.
The current law upholds a patriarchal notion of marital rights over women’s bodies.
Many countries, including most Commonwealth countries, have criminalised marital rape.

Way forward

Legislative action: Parliament should reconsider Section 375 in the light of constitutional morality and gender justice.
Comprehensive reform: Sexual violence laws must be strengthened, ensuring protection against abuse and promoting gender sensitivity.
Public debate: Social attitudes that normalise forced sex in marriage need to be challenged.