Rape per se is an offence against woman, violating her dignity and self-respect as it occurs within the four walls of a matrimonial home. It reduces the woman to the status of an object used merely for sexual gratification. There is an immediate need for a law on marital/spousal rape in India, which should be at par with the accepted international norms on this issue. Rape within marriage is a concept that agonizes the wife to the very core. This self-enforced silence has a very detrimental effect on the emotional, psychological and mental stability of women. However, this silence is not self-enforced. The lack of laws and social stigmas against marital rape is one of the primary reasons that the evil of marital rape is still hidden behind the sacrosanct of marriage. The woman has the right to fight for protection when the violators are outside entities. In light of this, the idea that a woman (wife) has to have sex with her husband irrespective of her will, consent, health, etc, is unacceptable to a civilized society. Therefore there is no justification or applicability of the notion of marital exemption in the current times. Indeed, mere criminalization of marital rape in India will not end the problem, but it sure is a step towards changing women's experience of sexual violence in a marriage. It is high time that the concept of "rape is rape, irrespective of the relationship between the victim and the perpetrator" by the law and put strictly to force.
When one mentions the word rape, the tendency is to think of a stranger, a malicious person. One does not think of rapes in the context of marriage. Women themselves find it difficult to believe that a husband can rape his wife. After all, how can a man be accused of rape if he is availing his conjugal rights? It is indicative that a woman has no right to her own body, and her will is subject to that of her husband. Though marital rape is the most common and repugnant form of masochism in Indian society, it is well hidden behind the iron curtain of marriage. While the legal definition varies, marital rape can be defined as any unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, the threat of force, or when the wife is unable to consent. Despite the prevalence of marital rape, this problem has received relatively little attention from social scientists, practitioners, the criminal justice system, and the larger society.
The word 'rape' has derived from the term 'radio’, which means ‘to seize’. Rape is, therefore, forcible seizure, or the ravishment of a woman without her consent, by force, fear or fraud. It involves coercive, non-consensual sexual intercourse with a woman. Rape can be viewed as an act of violence of the private person of a woman, an outrage by all means. It is the ultimate violation of the self of a woman. The Supreme Court of India has aptly described it as 'deathless shame and the gravest Crime against human dignity'. Rape is not merely a physical assault but is destructive of the whole persona of the victim.
The law did not conceptualize it as an offence against the person of the woman, one that destroys her freedom, it conceived rape as an instrument for protecting a man's property from the sexual aggressions of other men. Therefore the act of rape within marriage was not recognized as an offence as the woman was considered the property of the husband, and a man could not be perceived to violate his property.
Marital rape is particularly complicated because the complex, personal nature of marital relationships makes it hard for the victim to even see herself as a victim, let alone reporting the offending act to the authorities, which is why Marital Rape is one of the highly under-reported violent crimes. Even the women who do consider themselves victims are disinclined to approach the authorities because they are financially dependent upon their husbands, and reporting the matter could very well result in withdrawal of financial support leaving them and their children without food and shelter.
The definition of rape codified in Section 375 of the Indian Penal Code (“IPC”) includes all forms of sexual assault involving non-consensual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a spouse and a wife more than fifteen years old from Section 375's meaning of "assault" and in this manner vaccinates such acts from indictment. According to current law, a spouse is ventured to convey interminable agree to have intercourse with her significant other in the wake of going into conjugal relations. While reluctant sexual contact between a spouse and a wife is perceived as a criminal offence in pretty much every nation of the world, India is one of the 36 nations that have not condemned conjugal rape. The Supreme Court of India and different High Courts are presently overflowed with writ petitions testing the lawfulness of this case, and in an ongoing milestone judgment, the Supreme Court condemned reluctant sexual contact with a wife somewhere in the range of fifteen and eighteen years of age. This judgment has prompted an expansion in writs testing the legality of Exception 2 in general. Considering the continuous case, this Article fundamentally examinations the legality of Exception 2. Infringement of Article 14 of the Indian Constitution Article 14 of the Indian Constitution guarantees that " the State will not deny to any individual fairness under the watchful eye of the law or the equivalent assurance of the laws inside the domain of India." Although the Constitution ensures balance to all, Indian criminal law oppresses female casualties who have been assaulted by their spouses.
The IPC drafted during the 1860s, a wedded lady was not viewed as an autonomous legitimate substance. Or maybe, she was viewed as the property of her husband. As an outcome, she didn't have huge numbers of the rights presently ensured to her as an autonomous lawful element, including the option to document a grumbling against another under her own identity. Exception 2, which excludes activities executed by spouses against their wives from being viewed as demonstrations of "assault," is to a great extent affected by and got from this previously existing convention of combining the lady's character with that of her better half. The underlying foundations of this precept can be followed to British provincial principle in the Victorian era. India was a British state during the nineteenth century. All Indian laws sanctioned as of now were profoundly impacted by English laws and Victorian standards. The conjugal special case to the IPC's meaning of assault was drafted based on Victorian man-centric standards that didn't perceive people as equivalents, didn't permit married women to own property and merged the identities of husband and wife under the "Doctrine of Coverture."
But times have changed. Indian law now affords husbands and wives separate and independent legal identities, and much jurisprudence in the modern era is explicitly concerned with the protection of women. This concern is evident in the plethora of statutes intended to protect women from violence and harassment that have been passed since the turn of the century, including “The Protection of Women from Domestic Violence Act” and the “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.”
Exception 2 violates the right to equality enshrined in Article 14 insofar as it discriminates against married women by denying them equal protection from rape and sexual harassment. The Exception creates two classes of women based on their marital status and immunizes actions perpetrated by men against their wives. In doing so, the Exception makes possible the victimization of married women for no reason other than their marital status while protecting unmarried women from those same acts.
Exception 2’s distinction between married and unmarried women also violates Article 14 insofar as the classification created has no rational relation to the underlying purpose of the statute. In Budhan Choudhary v. the 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 reasonableness test that can be passed only if the classification has some rational nexus to the objective that the act seeks to achieve. But Exception 2 frustrates the purpose of Section 375: to protect women and punish those who engage in the inhumane activity of rape. Exempting husbands from punishment is entirely contradictory to that objective. Put simply, the consequences of rape are the same whether a woman is married or unmarried. Moreover, married women may find it more difficult to escape abusive conditions at home because they are legally and financially tied to their husbands. In reality, Exception 2 encourages husbands to forcefully enter into sexual intercourse with their wives, as they know that their acts are not discouraged or penalized by law. Because no rational nexus can be deciphered between the classification created by the Exception and the underlying objective of the Act, it does not satisfy the test of reasonableness, and thus violates Article 14 of the Indian Constitution.
Violation of Article 21
Exception 2 is also 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 interpreted this clause in various judgments to extend beyond the purely literal guarantee to life and liberty. Instead, it has held that the rights enshrined in Article 21 include the rights to health, privacy, dignity, safe living conditions, and safe environment, among others. In recent years, courts have begun to acknowledge a right to abstain from sexual intercourse and to be free of unwanted sexual activity enshrined 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.” In the same judgment, it held that non-consensual sexual intercourse amounts to physical and sexual violence. Later, in Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.
Most recently, the Supreme Court has explicitly recognized in Article 21 a right to make choices regarding intimate relations. In Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right of all citizens and held that the right to privacy includes "decisional privacy reflected by an ability to make intimate decisions primarily consisting of one's sexual or procreative nature and decisions in respect of intimate relations." Forced sexual cohabitation is a violation of that fundamental right. The above rulings do not distinguish between the rights of married women and unmarried women and there is no contrary ruling stating that the individual's right to privacy is lost by marital association. Thus, the Supreme Court has recognized the right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental right conferred by Article 21 of the Constitution. Additionally, Exception 2 violates Article 21's right to live a healthy and dignified life. As mentioned above, it is well settled that the "right to life" envisaged in Article 21 is not merely a right to exist. For example, there can be no dispute that every citizen of India has the right to receive healthcare or that the state is required to provide for the health of its constituents. In this vein, the courts have repeatedly held that the "right to life" encompasses a right to live with human dignity. Yet the very existence of Exception 2, which fails to deter husbands from engaging in acts of forced sexual contact with their wives, adversely affects the physical and mental health of women and undermines their ability to live with dignity.
The above conclusions reflect that Exception 2 to Section 375 of the IPC is an infringement of Articles 14 and 21 of the Constitution. It is time that Indian jurisprudence understands the inhumane nature of this provision of law and strikes it down.
42nd LAW COMMISSION REPORT
The Law Commission of India in its 42nd report put forward the necessity of excluding marital rape from the ambit of Section 375. In their words naturally, the prosecutions for this offence are very rare. We think it would be desirable to take this offence altogether out of the ambit of section 375 and not call it rape even in a technical sense. The punishment for this offence may also be provided in a separate Section.19
Many women’s organizations and the National Commission for Women have been
demanding the deletion of the exception clause in Section 375 of the Indian Penal Code which states that “sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape". However, the Task Force on Women and Children set up by the Woman and Child Department of the Government of India took the view that there should be a wider debate on this issue. The mandate of the Task Force was to review all existing legislation and schemes of women. Of the four recommendations made by the Task Force vis-à-vis rape under the Indian Penal Code, the most significant pertains to the definition of rape. It took the position that the definition of rape ought to be broadened to include all forms of sexual abuse. As per the recommendation, the Law Commission's proposed definition of "sexual assault” could be adopted in place of the existing definition of rape in Section 375 IPC as “it is wide, comprehensive and acceptable”. However, like the Law Commission, the Task Force also stopped short of recommending the inclusion of marital rape in the new definition.
By Neeati Jha, Legal Intern at S.Bhambri & Associates (Advocates), Delhi.