Summary: This article examines the Marital Rape Exception (MRE) in the context of live-in relationships, questioning whether the legal protections afforded to such relationships could inadvertently extend the MRE’s exemption to them. It evaluates the legal lacuna surrounding the applicability of the MRE to live-in relationships and calls for a reassessment of the boundaries between traditional marriage and modern cohabitation.
I. Introduction
Marriage is one of India’s oldest and most enduring social institutions. It is undeniable that it has pervaded into the socio-legal framework of Indian jurisprudence, garnering a variety of legal protections. One of these is exception 2 of Section 63 of the BNS or the Marital Rape Exception (hereinafter, “MRE”). The MRE provides for an avenue wherein rape is exempted if it is committed within the confines of a legally recognised marriage.
The Marital Rape Exception (MRE) has been a subject of extensive debate in India, yet meaningful legislative or judicial reform remains elusive. The recent decision by the Central Government to oppose the criminalisation of marital rape has reignited discussions surrounding the exception. This article aims to critically examine the MRE within the context of the modern Indian citizen’s evolving conception of live in relationships. The authors note a crucial lacuna that has not been deliberated upon previously when retaining the marital rape exception. From a jurisprudential point, courts have, at various times, ostensibly noted that these relationships can be construed as in the nature of marriage and subsequently accrued such relationships with protections given to a married couple. The question then arises, can the legal validity provided to live-in relationships be extended to clothe them with the exemption to rape?
II. The Recent Highlight On The MRE
The Centre has recently filed an affidavit in support of retaining the MRE. This was prompted by two judgements procured in the Karnataka and Delhi High Courts. The Delhi HC, in 2022, gave a split verdict, with Justice Rajiv holding that the MRE must be unconstitutional. Going one step further, the Karnataka HC permitted the trial against a husband for committing the offence of rape against his wife, reasoning that the MRE is an age-old and regressive concept which must not live on. The Supreme Court, however, stayed the trial and clubbed this with the appeals that arose from the Delhi verdict and other petitions.
In its affidavit, the Centre claimed that defining the term rape in the context of marriage is unduly harsh and disproportionate as other forms of rape must be differentiated from marital rape. The latter, as per the Centre, is solely a social issue, and it urged the parliament to address the problem. The Centre justified this differentiation by submitting that marriage, in itself, equips the parties with a continued expectation of sexual intercourse and reasonable sexual access to both parties.
While the Centre’s affidavit emphasises the supposed “reasonable sexual access” within marriage, it leaves several critical questions unanswered. If marriage alone justifies this expectation, what distinguishes it from a live-in arrangement, where emotional and physical bonds are often comparable? Given the increasing legal recognition given to live-in relationships holding similar dynamics to marriage, this creates a glaring loophole that remains legally ambiguous and ripe for scrutiny.
III. The Misclassification Problem
The jurisprudence around live-in relationships, as demonstrated in cases such as Velusamy v Patchaiammal and Indra Sarma v V.K.V. Sarma, reveals an apparent inclination to treat live-in relationships as analogous to marriage. However, this approach fails to appreciate the fundamental distinctions between the two forms of unions. In Velusamy, the Court’s criteria for a “relationship in the nature of marriage”, such as cohabitation for a significant period and holding out to society as spouses, essentially demand that live-in couples mimic the formal and societal attributes of marriage. Similarly, in Indra Sarma, factors that were taken into consideration, like pooling resources, domestic arrangements, and socialisation in public, further cement this notion that live-in relationships are only recognised if they reflect the structure and function of marriage.
The Uttarakhand UCC Bill’s definition of live-in relationships and provisions governing the same also perpetuates this conflation. Section 378 of the Bill stipulates that a live-in relationship must be registered, essentially formalising the relationship. Furthermore, Section 3(4(b)) of the draft UCC Bill defines a live-in relationship as a relationship between a man and a woman cohabiting in a shared household through a relationship in the nature of marriage.
The legislature and the Courts have effectively imposed the traditional framework of marriage repeatedly onto what is inherently a distinct form of cohabitation by equating live-in relationships with common-law marriages. This disregards the often-essential dynamics of modern relationships, which reject the traditional markers of marriage and do not want the State involved in their affairs. The restrictive legal lens applied by the judiciary and legislative bodies overlooks this diversity and instead reinforces marriage as the societal ideal. The reality is that many couples in live-in relationships seek to maintain their individuality while cohabiting rather than entering into a union that resembles marriage in all but name.
IV. Proposing A New Validity To Live-In Relationships
The status quo sets a dangerous precedent which runs the risk of potentially classifying live-in relationships under the Marital Rape Exception. While the intent behind such jurisprudence, which is to accrue marital benefits and rights, is ostensibly progressive, it inadvertently subjects live-in relationships to the same legal constraints that accompany marriage, including the MRE.
This risk is not merely theoretical. The Sessions Court in Mumbai recently granted anticipatory bail to a man accused of rape after he produced a notarised agreement claiming that he and the complainant had consented to an 11-month live-in relationship. The Court took into consideration the agreement, noting how it essentially “formalises” the relationship. The accused further argued that the long-standing relationship afforded him the ‘expectation of sexual intercourse’ additionally authorised by the agreement. This instance aptly displays the peril of framing live-in relationships within the marriage paradigm, as the factors taken into consideration by the Court and the arguments raised by the accused essentially mirrored the kind of defences available within a marital context. Further, the Centre’s rationale in retaining the MRE is brought forth by utilising factors such as a ‘continuing expectation of sexual intercourse’ and ‘reasonable sexual access to each other’, again runs the risk of being construed as akin to the paradigms of a live-in relationship. This further erodes the distinguishing line between a live-in relationship and a marriage.
Having established the potential risk of equating live-in relationships with marriage, it becomes clear that treating live-in relationships as a distinct social institution is the need of the hour. This approach demands that live-in relationships be afforded safeguards and rights explicitly tailored to their unique dynamics rather than imposing benefits solely through a resemblance to marriage. Recognising live-in relationships as distinct ensures that consent remains central throughout the relationship, unlike in marriage, where the MRE still operates. Countries like New Zealand, through the Property (Relationships) Act, and France, with the Pacte Civil de Solidarité (PACS), offer models where legal protections are extended to such relationships without necessitating the integration of live-in relationships into marriage-like frameworks. The PACS, for example, provides for a contractual arrangement between two individuals, offering legal benefits such as tax advantages and shared rights to social security. Unlike marriage, PACS does not automatically grant inheritance rights or full spousal privileges. Further, PACS can be dissolved through mutual consent or unilateral declaration, avoiding the lengthy divorce process. This structure allows partners to define the terms of their relationship while enjoying certain legal protections, respecting their choice to remain outside a marital framework. Assimilating such a distinction in Indian law would safeguard the rights and protections of live-in partners without binding them to the constraints and exceptions associated with marriage, particularly the MRE.
V. Conclusion
The Marital Rape Exception (MRE) and its continued defence based on the sanctity of marriage present a significant legal challenge, particularly as live-in relationships gain greater recognition. The conflation of live-in relationships with marriage risks extending the MRE to these non-traditional unions, thereby virtually granting a legal loophole. To protect the unique dynamics of live-in relationships, it is crucial for Indian law to evolve and establish clear distinctions between marriage and live-in arrangements. This requires a legal framework that respects the individuality of live-in partnerships while safeguarding their rights, without subjecting them to the same outdated principles, such as the MRE and this piece is but an attempt to advocate for positive action to change the status quo.
Tanya Sara George is a 3rd year student at MNLU, Mumbai and Abhishek Sanjay is a 2nd year student at NALSAR University of Law, Hyderabad.
Ed. Note: The article has been edited & coordinated by Jeetendra Vishwakarma from our Student Editorial Team.
