Marital Rape exception: Why has it been in the news since British-era

The law basically implies that if you're a married guy and force your wife to have sex with you without her consent, she can't go to the police and file a rape case no matter what how the intercourse takes place. 

The Delhi High Court issued a divided decision on marital rape on Wednesday. While Justice Rajiv Shakdher ruled that Exception 2 to Section 375 of the Indian Penal Code was unconstitutional, Justice Hari Shankar disagreed and maintained it. The division bench's divided decision came after a hearing on a slew of petitions seeking to criminalise marital rape.

This exemption has been in the IPC since its establishment in 1860, having been justified by Lord Macaulay in his first formulation of the criminal code in 1839 as a vital exception to preserve a husband's "conjugal rights."

Exception 2 to Section 375 of the IPC states: "Sexual intercourse or sexual activities by a man with his own wife, if the wife is not under the age of fifteen, are not rape."

It basically implies that if you're a married guy and force your wife to have sex with you without her consent, she can't go to the police and file a rape case no matter what how the intercourse takes place. 

Only five years ago, in 2017, the Supreme Court ruled that the provision should read "the wife being beyond the age of eighteen." However, this decision was restricted to ensuring that the IPC was consistent with the age of consent, which is 18, and so did not address the greater issue of the marital rape exception for adults.

A case that began with a petition from the RIT Foundation in 2015 has reached the stage of final arguments at the high court, which has heard from those who claim the petition violates Articles 14 and 21 of the Indian Constitution. 

The petitioners had approached the court seeking the striking down of the Exception 2 clause. Alleging that the clause infringed upon a woman's right to dignity, the petitioners contended that the law was also in violation of her right to privacy, choice and physical autonomy. To note, these rights have been acknowledged by the Supreme Court in its right to privacy verdict.

In his decision on Section 377, Justice DY Chandrachud stated that courts cannot hide behind archaic formalistic standards to avoid realising how a statute might be discriminatory and repressive and treat individuals differently.  The marital rape exception clearly undermines the fundamental rights of married women. According to the most recent NHFS statistics, one in every three women in India between the ages of 15 and 49 reported experiencing some sort of abuse from their spouses. Nearly 80% of women named their present husbands as abusers, whereas 9% named their ex-husbands as perpetrators.