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KEY TAKEAWAYS

  • Marriage cannot be interpreted as irrevocable implied consent.
  • Marriage should not be seen as a license for a man to rape his wife, regardless of his relationship with the victim, a rapist is a rapist.
  • There is a gross violation of natural justice principles and fundamental rights under Articles 14, 15, 19(1)(a) and 21 of the Constitution if marital rape isn’t criminalized.

INTRODUCTION

Marriage is regarded as the most sacred institution in India. The Indian laws, however, have failed to protect the interests of married women under the guise of marriage. Section 375 of the Indian Penal Code, 1860, defines rape as "nearly all types of sexual offenses." However, exemption 2 under this section exempts a man from prosecution if he has sexual relations with his wife who is over the age of 15. Legalizing forcible sexual intercourse with one's wife raises fundamental problems about whether the wife's permission is inferred after marriage and does a woman be counted as a husband's property. Marital rape is a heinous crime that has shattered people's faith in the institution of marriage. The non-criminalization of the practice has disproportionately affected women with the right to life, dignity, and personal liberty being violated. It is past time for the authorities to recognize this evil and take steps to defend married women's interests by removing the exception.

All forms of sexual assault involving nonconsensual contact with a woman are included in the definition of rape codified in Section 375 of the Indian Penal Code. But, unwanted sexual intercourse between a husband and a wife over a prescribed age is exempted and thus immunizes such acts from prosecution. Every country in the world recognizes unwanted sexual contact between a husband and a wife as a crime, but India is one of the thirty-six countries that has yet to prosecute marital rape. The Supreme Court of India and several High Courts are being inundated with writ petitions questioning the legitimacy of this provision and recently the Supreme courtcriminalized undesired sexual contact with a wife between the ages of fifteen and eighteen in a landmark decision. In this article critical analysis of the provision related to marital rape would be discussed in detail under the Indian Penal Code concerning judicial pronouncements.

INDIAN LAWS ON MARITAL RAPE

The most common kind of sexual assault against women occurs in the marriage home, where it is unrecorded, unreported, and there is no FIR. When one considers the overall number of married men and women, and the number of times this rape occurs within an institutional marriage, it's shockingly high and, unfortunately, it is never recorded, analyzed, or examined.

Rape is defined as non-consensual sexual intercourse with a woman under Section 375 of the Indian Penal Code. Before referring to the landmark cases related to marital rape and the interpretation made by the courts in India so far, it is pertinent to note that there was a recent case titled RIT Foundation v. UOI which is pending before the Delhi High Court on marital rape. The brief facts of the case were that NGOs RIT Foundation and All India Democratic Women's Association filed the PILs to have the exception provided to husbands under Indian rape legislation struck down. The petitioner claimed that courts all over the world have recognized marital rape as a crime and that the concept of a wife's irrevocable consent for sexual encounters has been abolished. It was argued on behalf of the Delhi administration that married and unmarried women were treated differently under every statute and that, In India, marital rape is a “crime of cruelty.” In addition to this case, there have been incidents of women who have been raped in their marriages, and neither their parents nor the police would assist them. The police would rather mock them, saying things like, "How can you come and file an FIR against your husband?"

Referring to a few judicial pronouncements, to begin with, in the case of State of Karnataka v. Krishnappa (2000), it was decided that sexual violence is an unlawful violation of a female's right to privacy and sanctity, in addition to being demeaning conduct. It is a tremendous insult to her supreme honor and dignity, and it degrades and humiliates the victims.

The Hon’ble Supreme court so far at best has determined in the case of Independent Thought vs. Union of India & Anr. (2017) as stated earlier, that sex with an underage wife constituted rape. It weakened the exemption to section 375 of the Indian Penal Code, which stated that sexual intercourse between a man and his wife who is not under the age of 15 does not constitute rape. Hence, to put it in simpler terms, it has only increased the age limit from 15 to 18 years to effectively have a pass for marital rape.

In the same case of Independent Thought,some important statements about marital rape were observed. It was stated that a girl child has a fundamental right to live a life of dignity under Article 21 of the Constitution. A girl child's self-esteem and confidence are shattered by early marriage, and she is subjected to sexual assault. A traditional practice sanctioned by the IPC effectively destroys a girl child's right to keep her bodily integrity.The notion that raping a girl child in marriage has the potential to destroy the institution of marriage cannot be accepted. Marriage is personal, not institutional, and nothing can end the 'institution' of marriage except a law making it unlawful and punished.In this instance, it is also held that a female has the same constitutional rights as a male and that no statute may be interpreted or understood to change that. If there is a theory that promotes such an unconstitutional illusion, that theory should be invalidated altogether. But the Court did not make any comments about the marital rape of a woman over the age of 18 because it was not the issue before the court.

In the case title Nimeshbhai Bharatbhai Desai vs. State of Gujarat (2018), the Gujarat High Court made some interesting observations about the injustices of marital rape. The equal protection clause is violated by treating married rape cases differently than non-marital rape cases, according to the court. According to the Constitutional right to equal protection under the law, similar issues should not be treated differently to grant excessive favor to some while discriminating unfairly against others. By contracting marriage, women do not relinquish their human rights, which include the right to have control over and make freely and responsibly decisions about their sexuality, including sexual and reproductive health, free of coercion, discrimination, and violence, for the simple reason that human rights are inalienable.

Husbands must be reminded that marriage does not permit them to rape their women forcibly. Marriage does not give a husband ownership of his wife's body. The Court also stated that women should not be forced to tolerate rape and violence in their marriages and that the total statutory abolition of marital rape is the first step in teaching societies that dehumanized treatment of women will not be tolerated, and that marital rape is a violent act and an injustice that must be criminalized. Despite the Court's remark, the husband was not charged with rape since marital rape is not covered under section 375 of the IPC.

LEGAL STATUS OF MARITAL RAPE IN OTHER NATIONS

When looking at the legal status of marital rape in various nations, it’s becomea crime under at least one provision of the sexual offense laws. Previously, in England, a man could not have been found guilty of rape against his wife since the wife is unable to retract her permission to sexual intercourse, which is a component of the marital contract. In 1991, however, the marital rape exemption was completely repealed.The House of Lords invalidated the ancient common-law rule that marriage automatically conferred consent for sexual intercourse in the case of R v. R. (1992) 1 AC 599, holding that a husband may be guilty of rape or attempted rape of his wife if she refused to engage in sexual intercourse with him. Following that, the European Commission of Human Rights concluded in C. R. v. The United Kingdom (1995) that "a rapist is a rapist regardless of his relationship with the victim."

Apart from the aforementioned situations, by 1991, every state in Australia had repealed the marital rape exception. Even, in New Zealand earlier, a person under the age of 20 but over the age of 16 can only marry with parental consent, and the age of sexual consent for women was also 16 years. After 1985, there were no exceptions related to marital rape under the Crimes Act of 1961 in New Zealand as well.

In comparison with the Indian law, the point that needs to be understood here is that Exception 2 to Section 375 was drafted in the year 1860, which was during a period of Victorian patriarchy in which women were not seen as equals to men, and therefore it is necessary to acknowledge the flaw in the law, following the principles of the constitution which we have adopted in 1950 where the status of equality and dignity is bestowed on all the citizens. Additionally, the other key point is that sexual intercourse with a separated wife without her agreement was not made illegal until the Criminal Law Amendment Act of 2013. The victims of marital rape have some recourse under Sections 354 and 377 of the Indian Penal Code, but they still lack the protection required to confront this terrible injustice.

VIOLATION OF FUNDAMENTAL RIGHTS: ARTICLE 14 AND 21

The lack of criminalization of marital rape results in a breach of India's Constitutional Right to Equality. Article 14 of the Indian Constitution states that no one should be denied equality before the law or equal protection under the law. This article of the Constitution ensures that everyone is protected by the law, yet Indian criminal law discriminates against female victims who have been raped by their husbands, which is a violation of the Constitution. A married woman was not regarded as an independent entity when the IPC was created as stated; rather, she was considered the chattel of her husband. However, circumstances have changed, and Indian law now recognizes husband and wife as separate legal entities.

To protect women, the Protection of Women from Domestic Violence Act 2005 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redress) Act 2013 have been adopted by Parliament. Exception 2 violates Article 14 since it discriminates against married women by denying them equal protection against rape and harassment. It also differentiates between married and single women. The Hon'ble Supreme Court held in Budhan Chadhary v. State of Bihar (2016) and State of West Bengal v. Anwer Ali Sarkar (1952) that any classification made under Article 14 of the Indian Constitution is subject to a reasonableness test that can only be passed if the classification has some rational connection to the objective. It becomes far more difficult for a married woman to escape abusive situations than it is for an unmarried woman since they are financially and legally bonded, and it allows the husband to enter into a violent sexual relationship.

Further, the restrictions of Article 21 are also violated by Exception 2 of Section 375 as it affects the right to live in dignity, the right to privacy, the right to a healthy life, and the right to choose whether or not to engage in sexual activity. Therefore, due to the existence of exception 2, the law fails to deter husbands from making forceful sexual relations.

CONCLUSION

The analysis above demonstrates that the Supreme Court has recognized a woman's freedom to abstain from sexual behavior regardless of her marital status because forced sexual contact between husbands and wives’ harms women's physical and mental health, as well as their ability to live with dignity. Hence, as stated above Section 375, exemption 2, violates Articles 14 and 21 of the Indian Constitution as it infringes on the right to equal protection under the law as well as the right to a life of dignity and privacy and other fundamental rights such as Article 15 and 19(1)(a). To conclude, in a country like India, reform is a long way off since neither the lawmakers nor the Indian judicial systems are prepared to bridge the gap between marital rape and rape, where both of them being heinous crimes can leave a victim scarred for life. Although there is no doubt that India is making progress in terms of legal reform for women, more efforts are needed to achieve both legal and social reform, which would result in the punishment of marital rape and a shift in attitudes toward women in marriage.


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