Women Safety Issues – Marital Rape, Domestic Violence, Swadhar, Nirbhaya Fund, etc.

What is the ‘Doctrine of Coverture’ in English common law?

Prelims Only | Polity | Mains Paper 2: Executive & Judiciary
Note4Students

From UPSC perspective, the following things are important :

Prelims level: Doctrine of Coverture

Why in the News?

The Marital Rape Exception (MRE), rooted in the doctrine of coverture from English common law, has long sparked debates about the legal autonomy of women within marriage.

Marital Rape Exception (MRE): What is it?

  • The MRE is found in Exception 2 to Section 375 of the Indian Penal Code (IPC), 1860, and its equivalent, Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023.
    • According to these provisions, sexual intercourse or sexual acts by a man with his wife do not constitute rape if the wife is above 18 years of age.

Why discuss this?

  • This legal immunity for husbands has been challenged for violating fundamental rights, and now, a three-judge Bench led by CJI D.Y. Chandrachud is set to examine the constitutional validity of this exception.
  • The outcome of this case could redefine the boundaries of consent and bodily autonomy within the institution of marriage in India.

 

Split Verdict by the Delhi High Court in 2022:

1. Justice Rajiv Shakdher’s Opinion:

  • Declared the Marital Rape Exception (MRE) unconstitutional.
  • Argued that the MRE violates a woman’s bodily autonomy and expression.
  • Criticized the exception as being rooted in patriarchy and misogyny.
  • Held that the classification of marital rape as different from rape outside marriage is unreasonable and arbitrary.
  • Emphasized that forced sex outside marriage is treated as “real rape,” while the same act within marriage is not.

2. Justice C. Hari Shankar’s Opinion:

  • Upheld the Marital Rape Exception, considering it legal within the framework of marriage.
  • Argued that sexual relations within marriage are a legitimate expectation.
  • Expressed concerns that allowing prosecution of husbands for non-consensual sex would be antithetical to the institution of marriage as understood in Indian society.
  • Believed that introducing the possibility of husbands being seen as rapists within marriage would undermine the institution of marriage.

Doctrine of Coverture from English Common Law:

  • The doctrine states that upon marriage, a woman’s legal existence was essentially merged with that of her husband.
  • The married woman was legally dependent on her husband, losing autonomy over her legal rights and property.
  • Impact on Women’s Rights:
    • Under this doctrine, a wife had no independent legal identity during marriage.
    • Women could not own property, enter contracts, or bring legal claims without their husband’s approval.
    • The husband had control over the wife’s body and actions, including sexual relations.
  • Influence on Marital Rape Exception:
    • The doctrine formed the basis for the original Marital Rape Exception in British common law.
    • It implied that a wife gave permanent consent to sexual relations upon marriage, which could not be withdrawn.
    • This legal reasoning was adopted in many British colonies, including India, and continues to influence Indian law today.
  • Modern Rejection:
    • England abolished the Marital Rape Exception in 1991 in the case of R v. R, recognizing that the doctrine of coverture no longer reflected the status of women in modern society.
    • Despite this, the doctrine’s influence persists in India’s legal system, particularly through the Marital Rape Exception in BNS.

PYQ:

[2024] The soul of new law, Bhartiya Nyay Sanhita (BNS) is Justice, Equality and Impartiality based on Indian culture and ethos. Discuss this in the light of major shift from a doctrine of punishment to justice in the present judicial system. 

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