In this article published by the Hindu, Jayna Kothari, examines the regressive exception to marital rape in light of the recent Karnataka High Court judgment.
Excerpt from the Article:
Over the last several months, arguments challenging the constitutionality of the marital rape exception in Section 375 of the Indian Penal Code (IPC) had gripped the Delhi High Court. While the judgment in those petitions is still awaited, in one clean swoop Justice M. Nagaprasanna of the Karnataka High Court on March 23, 2022, in the case of Hrishikesh Sahoo vs State of Karnataka, pronounced the end of the marital rape
Justice Nagaprasanna held that if a man, being a husband, is exempted for his acts of sexual assault, it would destroy women’s right to equality, which is the very soul of the Constitution. He held that the exception to marital rape in the IPC amounts to discrimination because a wife is treated as subordinate to the husband. This is in violation of the Constitution which recognises and grants equal status to women.
In Independent Thought vs Union of India (2017), the Supreme Court of India diluted it and removed the exception to marital rape to a wife not below 15 years and made it 18 years. In the judgment, Justice Madan B. Lokur held that “…A rape that actually occurs cannot legislatively be simply wished away or legislatively denied as non-existent…”
Root of the principle
A dictum by Chief Justice Matthew Hale of Britain in 1736 held that by marriage, a woman gave up her body to the husband, due to which a husband could not be held guilty of raping his wife. This was accepted as an enduring principle of the common law and translated to the criminal codes, among which was the Indian Penal Code, later adopted by India. However, in UK in 1991, the exception to marital rape was done away with in the case of R. vs R.