The Marital Rape Exception (MRE) of the Bharatiya Nyaya Sanhita, 2023, states that sexual intercourse by a man with his wife over eighteen is not classified as rape. This provision is being challenged in the Supreme Court of India as potentially violating constitutional rights, with the Centre filing an affidavit in its support.

Key Arguments Presented by the Centre

• Expectation of Sexual Access: The Centre argues that marriage creates a “reasonable expectation of sexual access,” which distinguishes marital interactions from those with strangers or non-marital partners. 
  • However, this notion raises concerns about its vagueness and whether “reasonable access” is subjective or objective .
• Institution of Marriage and Concerns of Misuse: The affidavit claims that recognizing marital rape as a crime could undermine marriage and lead to false allegations. 
  • Critics argue there is no evidence to support this claim. They emphasize that if a marriage relies on the acceptance of rape, it calls for necessary reforms. 
  • While misuse of laws can occur, it does not diminish the importance of the law itself .
• Jurisdiction and Legal Issues: The Centre maintains that marital rape should be addressed as a social issue by Parliament, not as a legal issue for the courts. 
  • However, the interaction of Articles 14 and 21 suggests that it is indeed a legal matter. The Supreme Court has the authority to evaluate the constitutionality of the MRE and potentially invalidate it if it violates fundamental rights.

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Conclusion

The Centre’s affidavit presents familiar arguments supporting the Marital Rape Exception, yet their legal merit is questionable. The judiciary has the authority to evaluate the MRE’s constitutionality and its alignment with fundamental rights, which carries significant implications for society and India’s legal framework.

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