June 13, 2022
In the case of RIT Foundation v. Union of India1 , the moot point which arises is whether or not Exception 2 (“Marital Rape Exception” or “MRE”) appended to S 375 of the Indian Penal Code, 1860 (“IPC”) should remain on the statute, whereof the impact and its ripple effect, in law, is inconceivably vast. Thus, those who support the proposition that MRE should be struck down, broadly contend that it is an archaic provision which represents the most abhorrent vestiges of colonialism. Turning to the common law, as a general proposition, a husband cannot be guilty of rape on his wife, as upon marriage the wife consents to husband’s exercising the marital right of sexual acts. The marital right of the husband in such circumstances exists by virtue of the consent given by the wife at the time of the marriage and not by virtue of consent given at the time of each sexual act as in the case of unmarried persons. For those who argue that MRE should be retained on the statute, contend that striking down the provision is fraught with the danger of disrupting marital and familial relationships, triggering misuse of law and transgression of the constitutional periphery within which the courts are obliged to function.
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