Indeed, even as we commend 73 years of Independence, the women in our nation are as yet not genuinely free and autonomous and keep on living under the domain of murkiness and dread. It is undoubtedly a solemn truth of India. It involves concern, that while on one hand the nation is commending some magnificent choices in the lawful field from the Hon'ble Supreme Court of India like milestone decisions in the issue of 'Article 370' and '"Triple Talaq' making new foundations for the legal executive; then again, to the overall frustration, the central government has given its view against condemning marital rape, saying doing so would 'destabilize the establishment of marriage'.
Domestic violence in India is an rooted delinquent, and it has only been worsened in the recent years. About 70 per cent of women in India are victims of domestic violence. National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019 report was worrying but not astonishing. As per the report, in India, a woman is raped every 16 minutes, and every four minutes, she experiences brutality at the hands of her in-laws. An analysis of National Family Health Survey (NFHS) 2015-16 data indicates that an estimated 99.1 per cent of sexual violence cases go unreported and that the average Indian woman is 17 times more likely to face sexual violence from her husband than from others. In spite of the recent amendments in the criminal law, various laws meant to safegaurd women from domestic violence and sexual assault have largely persisted ineffective. But what happens when laws provide a protect the perpetrators and jeopardize the victims?
The previously mentioned conundrum isn't simple fiction yet exists as a reality in the Indian Penal Code. Quite possibly the most alarming and severe issues with the Indian lawful system is that conjugal assault is entirely lawful.
Marital rape, the act of forcing your spouse into having sex without proper consent, is an unjust yet not scarce way to degrade and disempower women. Today, it has been arraigned in more than 100 nations however, unfortunately, India is one of the lone 36 nations where marital rape is as yet not condemned. In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) suggested that the Indian government ought to condemn conjugal assault. The JS Verma committee set up in the outcome of cross country fights over the December 16, 2012 assault case had additionally suggested something very similar. Notwithstanding that, assault laws in our nation proceed with the male centric standpoint of believing women to be the property of men post marriage, with no independence or organization over their bodies. They deny wedded women equivalent insurance of the laws ensured by the Indian Constitution. Administrators neglect to comprehend that a marriage ought not be seen as a permit for a spouse to coercively assault his better half without any potential repercussions. A wedded women has similar option to control her own body as does an unmarried women.
However, despite the increasing number of cases of marital rapes in our country, marital rape is not defined in any statue/ laws. It is to be noted that while 'Rape'" is defined under section 375 of the Indian Penal Code, there is no definition of 'Marital Rape' till now and there is no reorganization of marital rape under the ambit of Indian Law. It is disheartening that such a sensitive issue like marital rape is being dismissed by the highest courts of India by giving the view that "You are espousing a personal cause and not a public cause...This is an individual case”.
Sexual violence in marriage contains a history as long because the institution of marriage itself. Except for millennia, marital rape – was considered a personal trouble not a public issue. In most other parts of the traditional world, the earliest laws defined rape as a property crime against the husband or father, instead of the women herself. Under this framework marital rape was an oxymoron since a wife was legally a husband’s property. In the 17th century, rape laws view rape as crime against the women herself, it had been on the bottom of violation of her sexual purity. This wasn't considered in an exceedingly marriage since a women’s purity couldn't be spoiled by her husband. The marital rape exemption originated at common law with Lord Mathew Hale’s declaration that ‘the husband can't be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself during this kind unto her husband’s which she cannot retract’. Most notably, the law safeguarded both a father’s interest in his daughter’s virginity and a husband’s interest in his wife’s fidelity. This ideology of a permanent, irrevocable consent pervaded legal and cultural conceptualizations of marriage and compelled sex within it. And this ideology has global resonance, not because people of the many country were influenced by Lord Hale, but because control of women’s bodies through marriage is foundational to patriarchy. within the 18th and 19th centuries’, emphasis on women’s chastity increased, and rape began to be perceived as a threat women faced outside the household, which their father and husband had to guard them from rape. It was under the influence of those laws and attitudes that the IPC was drafted in 1860, section 375 categorically excluded marital rape from the definition of rape. A century and half later activist movements have led to several progressive changes in India’s anti-rape laws. And yet India endures to sustain a husband’s right to rape his wife.
SECTION 375 OF THE INDIAN PENAL CODE
Section 375 of the IPC defines rape as “sexual intercourse with the woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been befuddled or duped, or is of unsound mental health and in any case if she is underneath 18 years of age.”
It is rape if it falls under:
Against her will,
Without her consent.
With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
With her consent, when, at the time of giving such a consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any unconceivable or nasty substance, she is unable to understand the nature and significances of that to which she gives consent.
With or without her consent, when she is underneath 18 years of age.
Consent under Section 375:
Consent is defined as clear, voluntary communication that the woman gives for a certain sexual act. Marital rape is an exception to giving consent as it is not a crime under the Indian Penal Code, as long as the woman is above 18 years of age.
Exceptions to Section 375:
Sexual intercourse by a man with his own wife, the wife not being under 18 years of age is not sexual assault.
Amendment to Section 375 of IPC:
The Criminal Law (Amendment) Act, 2013 or the Nirbhaya Act, was passed in Parliament to amend Section 375. To remove ambiguity in the earlier law and provide for strict punishment in cases of rarest cases of sexual violence, the legislation was expanded to define acts like penetration of penis into vagina, urethra, anus or mouth, or any object or any part of body to any extent into the aforesaid woman body parts (or making another person do so), as constituting an offence of sexual assault. Applying mouth or touching private parts were also classified as offences of sexual assault.
Excluding certain intensified situations, the punishment will be imprisonment of not less than 7 years but it may extend to imprisonment for life, and shall also be liable to fine. In intensified situations, punishment will be rigorous imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life, and shall also be liable to fine.
VIOLATION OF FUNDAMENTAL RIGHTS
At the essential start, any law is substantial just on the off chance that it withstands the test stone of constitutionality. Marital rape exclusion clause violates the principal privileges of a personal ensured under Indian constitution. Preamble, a basic structure of Indian constitution, solemnly resolved to secure to all or any citizens the justice, liberty of thoughts and expression, equality of status yet actually, India is much behind in executing it.
Article 14 pronounce equality before law and equal protection of law to any or all the individual, because it states- ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’ Not withstanding that the Constitution guarantees equality to all or any, Indian criminal law discriminates against female victims who are raped by their own husbands.
Exception 2 violates the right to equality reinforce in Article 14 so far because it discriminates against married women by denying them equal protection from rape and harassment. The Exception creates two classes of women based their marital status and immunizes actions executed by men against their wives. In doing so, the Exception makes possible the victimization of married women for no reason apart from their marital status while protecting unmarried women from those same acts, when the psychological trauma of both acts being the equal.
In Budhan Chaudhary v. State of Bihar and State of West Bengal v. Anwar Ali Sarkar, The Supreme Court held that any classification under Article 14 of the Indian Constitution is subject to a sensibility test which will be passed as long as the classification has some rational nexus to the target that the demonstration tries to accomplish. But Exception 2 disappoints the aim behind Section 375: to guard women and punish people who engage within the inhuman activity of rape. Exempting husbands from punishment is entirely contradictory to the current objective. Because no rational nexus can be deciphered between the classification created by the Exception and also the underlying object of the Act, it doesn't satisfy the test of reasonableness, and thus violates Article 14 of the Indian Constitution.
Exception 2 is additionally a violation of Article 21 of the Indian Constitution. Article 21 states that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” The Supreme court has given an extensive interpretation in Maneka Gandhai v. Union of India. The term ‘right to life and personal liberty’ recognizes the self-determination, bodily integrity, privacy including sexual privacy within itself. Thus Article 21 has become the source of the many practical rights and ritual safeguards to the people. Its deprivation shall only be as per the relevant procedure prescribed within the relevant law, but the procedure should be just, fair and reasonable. In recent years court have begun to acknowledge a right to abstain from sexual activity and to be freed from unwanted sexual activity enriched in these broader rights to life and personal liberty.
In The State of Karnataka v. Krishnappa, the Supreme Court held that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.” within the same judgment, it held that non-consensual sexual activity amounts to physical and sexual violence.
The Apex court, in Kartar Singh v state of Punjab held that the procedure anticipated by Article 21 must be “right, just and fair” and not arbitrary, imaginary or repressive. so as that the procedure be right, just, fair, it must adapt to the principles of natural justice. Howsoever, not criminalizing marital rape solely on the rationale of archaic norm is erroneous and unlawful.
In Bodhisattwa Gautam v Subhra Chakraborty, Apex court held that rape is a crime against the fundamental human rights and also the violation of victim’s right to life and dignity, thus violating Article 21. Thus there's no real justification in making distinction between the act committed by one’s spouse and a stranger.
That the case of State of Maharashtra v. Madhkar Narayan the Supreme Court has held that each woman is entitled to her sexual privacy and it's not hospitable for any and each person to violate her privacy as and whenever he wished.
The judiciary appears to possess totally consigned to the actual fact that rape inside marriage is impractical or that the disgrace of assault of a girl may be erased by getting the attacker.
That a reading of the aforesaid cases in addition various other catena of the judgments and cases, it's ample clear that such an exception as “marital rape: us violative of the vital fundamental notions on which our complete system is based and such an bar indemnities the prerogative of women to live with dignity and boosts the society to commit crime against the women, which in itself is unacceptable and against the principle and crook gravels of the Constitution of India.”
The above conclusions clearly reflects that Exception 2 to Section 375 of the IPC is an infringement of Articles 14 and 21 of the Constitution. it's time that Indian jurisprudence understands the inhumane nature of this provision of law and strikes it down.
In NIMESHBHAI BHARATBHAI DESAI V. STATE OF GUJARAT, 2018 SCC Online Guj 732, the High Court of Gujarat labelled Marital Rape as a ‘disgraceful offence’, a suit was filled by a wife against her husband of perpetrating agony and execution sexual activity without her consent on several occasions. The court observed that a wife is not a chattel and a husband having sexual intercourse with his lawfully wedded wife is not just using a property, he is pleasing a marital duty with an equivalent human being with dignity equal to that her unities himself. He cannot be permitted to violate this dignity by coercing his wife to engross in a sexual act without her free consent. But meanwhile the Indian Penal Code does not esteem marital rape as a crime, the court held that the husband is liable only for outraging her modesty and unnatural sex. Furthermore, the court counselled that the time is apt that the legislature intrudes and drives in details of this issue of marital rape as it is a solemn matter which regrettably is not enticing serious conversation at the end of the government.
CRIMINILIZING MARITAL RAPE
That in the period of lawful changes and unrests, it is of most extreme significance to make strides towards criminalizing marital rape so we can push a stride ahead towards the path of progress in real sense. Rape is rape, regardless of the personality of the culprit, and age of the survivor. A lady who is raped by a more bizarre, lives with a memory of a frightful attack; a woman who is raped by her significant other lives with her attacker. Our penal laws, given over from the British, have overall stayed immaculate even following 73 years of independence. But English laws have been revised and marital rape was condemned path back in 1991. In India, marital rape exists de facto but not de jure. While in other countries either the legislature has criminalized marital rape, or the judiciary has played an active role in recognizing it as an offence, in India however, the judiciary seems to be operating at cross-purposes. In a nation like India, such a change is a long way from the truth as neither the officials of this country nor the Indian legal frameworks are set up to overcome any barrier between conjugal assault and assault as they are both shocking violations which could scar the victim forever.
The battle to condemn marital rape in India, isn't simply changing the law on paper. It is tied in with assaulting the well-established outlook that actually sees a woman as her better half's property and not as a person with her own office. It's tied in with battling against this thought of marital sanity that depends on the oppression of women. What's more, it is tied in with testing this larger rape culture, that denies women our essential rights, regard, and real self-governance. Marriage is currently viewed as an association in which both a couple share equivalent rights. The purpose for rape law would now be able to be considered as one of ensuring a woman’s personal safety and freedom of choice than as one of securing male interests in women’s integrity. Clinical proof has shown that rape has genuine and long-haul ramifications for women. Such disgraceful sexual activities should be denied. The need to criminalize marital rape is critical to reestablish trust and confidence in the organization of marriage. Consequently, the exception of spouse from the law of rape could be surrendered now.
NAME- Mahi Jaiswal
COURSE- BALLB (hons) 2nd year
COLLEGE- Bharati Vidyapeeth New Law College, Pune