Men and women are the pillars of an idealistic society. They have equal importance in creation and development of any society. But the women are more prone to face several humiliations. Irrespective of the various safeguards and protections available at the global as well as at national level, they are subjected to discrimination. The list of offences against women seems endless as- sexual harassment, dowry-death and domestic violence and so on. On a darker side, some offences have not been recognized yet. One of which is ‘marital rape’ which needs immediate attention of the Legislature.
Section 375 of Indian Penal Code 1890 defines rape. It covers almost all forms of sexual assault involving non consensual intercourse by a man with a woman. However it specifically excludes marital rape from its ambit by virtue of Exception 2 to Section 375. ‘Marital Rape’ is the sexual intercourse between husband and wife without her due consent or willingness. The Exception provides for immunity to the husband where the wife is above 15 years of age. As per current societal norms, a woman is believed to have provided her consent for sexual intercourse at the time of marriage for forever.
Since the time immemorial, a wife is considered as an exclusive property of her husband. This notion is apparent in almost all enacted laws whether it is personal or other. Rape was considered as theft of a woman from her male counterpart or her guardian. There was a presumption that a man would not violate his own property. Therefore a husband is provided absolute immunity in having sexual intercourse with his wife.
Marital rape can broadly be classified into these categories.
Battering Rape: Where physical and sexual violence both are present. Most of the cases of marital rape and violence fall under this category.
Force-only Rape: The amount of force necessary to coerce wife is used by the husband.
Compulsive/Obsessive Rape: Wherein assaults involve torture.
Almost every prosperous country has given recognition to marital rape through various enactments which include Albania, Algeria, Australia, Belgium, Canada, China, Denmark, France, Germany, Hong Kong, Ireland, Italy, Japan, Mauritania, New Zealand, Norway, the Philippines, Taiwan, Tunisia, the United Kingdom, the United States, and recently, Indonesia. In 2006, in a common understanding between about 100 nations, it was concluded that marital rape is an offence but India was not the one among them.
The Supreme Court and various High Courts are flooded with the petitions challenging the constitutional validity of Exception 2 to Section 375. However, in a recent landmark judgment of Independent Thought v. Union of India, Supreme Court has criminalized the sexual intercourse with a wife between 15 to 18 years of age. In 2005, the Protection of Women from Domestic Violence Act was passed which recognizes marital rape as a form of violence against women and it could be a ground for obtaining judicial separation from her husband.
Article 14 of the Constitution
Article 14 of the Indian Constitution ensures equality before law and equal protection of laws to every person within the territory of India. Although the Constitution guarantees equality to every person, the criminal law discriminates against female victims who have been raped by their own husbands.
At the time of drafting of IPC, a married woman was not considered an independent legal entity but her husband’s property. Therefore she did not have any rights conferred upon an independent legal entity. Exception 2 to Section 375, which provides complete immunity to husband’s actions against their wives from being considered “rape,” is majorly influenced by this already existing notion of considering the identities of husband and wife as one.
Due to judicial activism and various movements by human rights activists, Indian law and jurisprudence has undergone a major change. Women are now considered as distinct legal bodies from their male counterparts. Therefore legislature has enacted various laws for their protection such as Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal Act based on Vishakha guidelines, The Protection of Women from Domestic Violence Act etc.
Exception 2 infringes the right to equality enshrined in Article 14 as it creates separate classes of women undergoing sexual assault in form of rape as married and unmarried ones. It denies married women equal protection from rape and sexual harassment.
The categorization has no rational relation to the objective sought to be achieved by the enactment. The Supreme Court has observed in various cases that any classification under Article 14 of the Indian Constitution is subject to a reasonableness test that can be passed only if the classification has some rational nexus to the objective that the act seeks to achieve.
The primary objective of Section 375 is to protect women and provide punishment to those who exert their force on women and engage in inhumane activity of rape. But Exception 2 frustrates this. Exempting husbands from punishment is entirely contradictory to the objective which was sought to achieve justice and dignity for women. The consequences of rape are grave and serious on every woman whether she is married or not. Furthermore, it is more difficult for a married woman to suffer in such a condition where the person she loves is himself the perpetrator. This exception further encourages husbands to harass their wives as they are aware that their acts are not penalized by law. Therefore Article 14 is violated.
Violation of Article 21
Article 21 guaranteed to every person right to life and personal liberty except according to the procedure established by law. This right has been interpreted to include the right to health, privacy, dignity, safe living conditions, safe environment etc.
The Supreme Court in Bodhisattwa v. Chakraborty held that “rape is a crime against basic human rights and a violation of the privacy and dignity of victims”. It violates the rationale of the most divine fundamental right, i.e. Article 21. However the court failed to analyze the violation of ‘right to life’ by ignoring the gravity of offence of marital rape. The offence of rape drains the life and integrity out of a woman and violates her fundamental right to live with dignity. A compromise in the name of well-being of a woman because of her marital relationship or her children is an act of mistrust and misogyny by our constitution. A woman’s dignity and nobility should be of supreme importance to each and every person.
Furthermore, the Supreme Court in the State of Karnataka v. Krishnappa, observed that sexual violence is a dehumanizing act as well as an intrusion into the right to privacy and sanctity of a female. The court also stated the fact that forceful sexual relations violate the basic fundamental rights of a citizen.
In Srivastava v. Chandigarh Administration, the Apex court emphasized on the correlation between the rights of personal dignity and privacy with the rights of a woman with her choices about sexual relations.
In the landmark case of Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court held that right to privacy is at par with other fundamental rights. It was held that the right to privacy includes personal decision of a woman as to when to engage in a sexual conduct. Nonconsensual or forced sexual relations are a shameful violation of this fundamental right and the court has already held the view that choices about private relationships are covered under the ambit of the right to privacy.
All the judgments referred above clearly make no difference with the marital status of women. The Apex court passed these decisions without considering the various ‘categorization’ of women.
In recent years, courts have become aware of women’s sufferings and therefore have acknowledged the right to abstain from sexual intercourse and to be free of unwanted sexual activity in view of Article 21. Exception 2 violates Article 21 i.e. right to live a healthy and dignified life. Since life here does not mean “mere animal existence” but a dignified life. Exception 2 fails to protect women against the forceful sexual acts of a husband against his wife , thereby depriving the female of her ability to live with dignity.
The courts have repeatedly made an observation that sexual intercourse with wife aged above 15 years is not rape. Marriage is considered as a private affair between two individuals. However, the crimes that happen within the four walls are worst of all. There are corresponding sets of rights and duties between the married persons. The right to privacy and health are not lost merely due to the fact that parties are married.
The Apex Court, in State of Maharashtra vs. Madhukar Narayan Mandikar, has referred to the right of bodily privacy. In the instant case it was held that a prostitute had the right to refuse sexual intercourse. It is purely her discretion. Broader picture is that all the rapes committed by the strangers have been criminalized and all females, except wife, have complete right over their bodies enabling them to withhold their consent and refuse sexual intercourse. The Kerala High Court dealt with a case i.e. Sree Kumar vs. Pearly Karun wherein parties agreed to live separately due to an ongoing dispute. However a settlement was reached and they continued to live together. They stayed two days together where wife alleged that she was forced into sexual intercourse by her husband against her consent and will. The HC acquitted the husband and held him non-guilty for the offence of rape.
The judicial approach is prima facie convincing of the idea that there is no concept of consent, willingness and rape within the conjugal ties. Only sexual satisfaction is not the objective of marriage. It is bond based on mutual respect, trust and love. A woman is expected to fulfill husband’s every whim and fancies. It is a deep trauma which a woman has to go through knowing that she is subjected to rape by someone known, a family member, and worse to have to cohabit with him. How can the law be so much ignorant to such a huge violation of a fundamental right of freedom of any married woman, the right to her body, to protect her from any abuse?
UNDER-REPORTING OF SUCH CASES
India is a conservative country which still has orthodox beliefs. Dealing with such a high –level issue like marital rape is too tricky. Wife is still considered subordinate to her husband. She can’t stand up for her own rights. Approximate two-thirds of the married women are subjected to rape every now and then irrespective of their social and economic conditions. Marital rapes are hardly reported anywhere. There are various reasons for under-reporting of these cases.
One cannot deny the fact that marital rape subsists in our society and many women are forced to endure agony in silence as there are neither enough befitting legal provisions nor substantial backing up for the offence of such a grave degree. The dominance of patriarchal mindset has led judicial structure to turn down its eyes to the frightful torment of the wives of the nation
Keeping in view the present scenario and the rising number of marital rapes, following are some of the proposed recommendations that can be incorporated to bring about gender neutrality in the judicial fabric of the country. Some of the general legal suggestions that can be implemented can be listed down as:
Declaring marital rape as an offence and prescribing punishment for the same.
Setting up of special institutions to cater to the needs and care of the children in such settings.
Elimination of the second exception under Section 375 IPC.
The above observations clearly reflect that Exception 2 to Section 375 of the IPC is an infringement of Articles 14 and 21 of the Constitution. It is the high time that Indian courts understand the inhumane nature of this provision of law and take some action on it. Such kind of acts not only affects the female but the society as a whole. They destroy the sanctity of marriage and its sacred nature.
3rd Year Student, B.Com. LL.B. (Hons.)
University Institute of Legal Studies, PANJAB UNIVERSITY, CHANDIGARH