MARRIAGE – A LICENCE TO RAPE?
It’s 2021 and still marital rape is not considered as a crime in many countries. Only 36 countries in the world including India have not criminalised marital rape.
Violence against women in India is not unknown to anyone. According to national crime records bureaus (NCRB) Crime in India 2019 report, about 70% of women in India are victims of domestic violence which includes physical abuse, mental abuse, sexual abuse.
There is punishment prescribe in Indian penal code for the physical abuse but not for sexual abuse.
Section 375 of the Indian penal code (IPC) defines rape as a criminal offence and states that a man commits rape if he has a sexual intercourse with a woman without her consent and if the girl is minor.
However, according to exemption 2 of this section 375 of IPC states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age is not a rape.
The provision states that if a man has a sexual intercourse with women under 15 years of age, it shall be considered as a rape irrespective of consent or no consent. However, if a man has a sexual intercourse with a woman above 15 years of age without her consent then too it is not considered as a rape.
This states that if a woman above 15 years of age is married than her consent to have a sexual intercourse with her husband doesn’t have any value even in the eyes of law.
Consent is one of the essential element to prove rape than why the law in this country does not given any importance to the consent of married woman who is above 15 years of age.
Section 375 of IPC violates the rights of a women, who are victims of rape, to be treated equally with their husbands and with other victims of the same offence.
MARITAL RAPE-AGAINST CONSTITUTIONAL RIGHTS
Violation of article 14 of the Indian constitution
Article 14 of the Indian constitution states the EQUALITY BEFORE LAW-The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. The constitution guarantees equality to all but why does it discriminates female victims who have been raped by their husbands.
Exception 2 of section 375 of IPC creating distinction between women and married woman violates the right to equality enshrined in article 14 of the Indian constitution.
Violation of article 21 of the Indian constitution
It states that no person shall be deprived of his life or personal liberty except according to a procedure established by law. The article 21 ensures that everyone has the right to life liberty and the security of a person. However, the exception 2 of the section 375 of IPC completely violates the right to life-right to live with human dignity of female victims who have been raped by their husbands.
Rape is a rape whether it is done to a married woman or unmarried woman. When the husband engaged in a sexual intercourse with his wife without her consent, it is a rape because it gives equal pain and fear to that women who has been marital raped by her husband. But Unfortunately, in 2021 too marital rape in India is not considered as a rape and which ensures the husband that they can do whatever they wanted to do with their wives the name of marriage as they know that they will be not penalised by the law of this country for doing such act.
Hence, the woman’s consent is neither asked for nor she gives. The idea that once married, a woman hands over her never-ending, continuous sexual consent to her husband is deeply embedded in our society and the saddest part is that society, the country’s laws, and even the family justifies marital rape.one of the main reason of not criminalising the marital rape is that I India marriage is considered sacred so marital rape is non- existent. Indian society believes and justifies that criminalising marital rape will ‘destabilise the institution of marriage’.
In India rape has been held to a violation of a person’s fundamental life guaranteed under article 21 of the Indian constitution.it states that rape to a woman means violation of her fundamental right, right to life, right to live with human dignity.
In case of Bodhisattwa Gautam v. Subhra Chakraborty, the supreme court held that:
‘’Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society, which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is therefore, the most heinous crime. It is a crime against human basic rights and is also violative of the victims most cherished of the fundamental rights namely the right to life with human dignity contained in article 21 of the Indian constitution.
Thus ,in above case supreme court considered rape as a crime against human basic rights and thus it violates the article 21 of the Indian constitution.
Then why, marital rape does not have any value in Indian criminal law and why does India does not criminalized marital rape?
In case of Sree Kumar v. pearly Karun, the Kerala high court watched that the offense under section 376A of IPC won’t be pulled in as the spouse is not living independently from her husband under a declaration of partition or under any custom or use, regardless of the possibility that she is liable to sex by her better half without wanting to and without her assent. For this situation, the spouse was subjected to sex without her will by her husband when she went to live with her husband for 2 days as a result of settlement of separation procedures which was going on between the two parties. Subsequently the spouse was held not liable of raping his wife even though he had done so.
The exception2 under section 375 of IPC violates the fundamental rights of a married woman to live their life with dignity.
Article 14 and 21 of the constitution of India are the basic fundamental rights that ensures that every citizen of this country should have their fundamental right that is to right to equality and to right to live with dignity. But unfortunately, in India married women cannot enjoy their basic fundamental rights mention in article 14 of the Indian constitution of India ‘’right to equality’’ and in article 21 of the constitution of India right to live with dignity. Thus, it reflects that now India should also criminalize marital rape because before a wife of her husband she is a woman, thus she should have the right to live her life with full dignity.
THE VERMA COMMITTEE:
State that the IPC differentiates between rape within marriage and outside marriage. Under the IPC sexual intercourse without consent is prohibited. However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife. The Committee recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual acts. Therefore , with regard to an inquiry about whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant.
However, government still not give its acceptance in favour of Justice Verma committee recommendation on criminalising marital rape in India. On August,29 the Centre told the Delhi High Court that criminalising marital rape ‘may destabilise institution of marriage’ and would become an easy tool for harassing the husbands. The Centre in its affidavit also states that criminalising marital rape may also leads to its misuse.
The United Nations declaration on the elimination of violence against women defines violence against women as ‘’any act of gender-based violence that results in, or is likely to result in , physical , sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.’’
In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian government should criminalize marital rape.
After many recommendations from different committee’s still India have not criminalised the marital rape.
However, many petitions are filed in court in favour of criminalising the marital rape in India and I believed in coming years the legislature would also understand the depth of the problem of marital rape and it may criminalised the marital rape in India .
Ensuring that marital rape is criminalised would make justice more accessible for all women, irrespective of marital status.it could also send a powerful signal that a woman always has the right to choose whether and with whom she has sexual relations.
Written By:
Prachi Sharma
BALLB
Maharaja Agrasen Institute of Management Studies (GSSIPU)