Bhubaneswar (SunstarTV Bureau): A victim of marital rape, is little supportive in India. Society shames her, the law ignores her. The women consent is taken for granted. The Indian husband entitled to sex once married. Do Indian husbands have right to force their wives to have sex with them or Indian men entitled to a woman’s body?
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 husband and a wife over fifteen years of age from Section 375’s definition of “rape” and thus immunizes such acts from prosecution.
Thus making it legal for men to rape women who happen to be their wives aged 15 and above.
Most countries in the world recognize that rape is rape, and that rape is a crime. So, what’s holding India, a burgeoning ‘superpower,’ back? It’s 2020 and India remains one of 36 countries where it is not a crime for a man to rape a woman – as long as they are married.
The Supreme Court of India and various High Courts are currently flooded with writ petitions challenging the constitutionality of this exception, and in a recent landmark judgment, the Supreme Court criminalized unwilling sexual contact with a wife between fifteen and eighteen years of age. This judgment has in turn led to an increase in other writs challenging the constitutionality of Exception 2 as a whole. In light of ongoing litigation, this Article critically analyses the constitutionality of Exception 2.
Violation of Article 14 of the Indian Constitution:
Article 14 of the Indian Constitution ensures that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”Although the Constitution guarantees equality to all, Indian criminal law discriminates against female victims who have been raped by their own husbands.
At the time the IPC was drafted in the 1860s, a married woman was not considered an independent legal entity. Rather, she was considered to be the chattel of her husband. As a result, she did not possess many of the rights now guaranteed to her as an independent legal entity, including the right to file a complaint against another under her own identity. Exception 2, which essentially exempts actions perpetrated by husbands against their wives from being considered acts of “rape,” is largely influenced by and derived from this already existing doctrine of merging the woman’s identity with that of her husband.
The roots of this doctrine can be traced to British colonial rule in the Victorian era. India was a British colony during the 19th century. All Indian laws enacted at this time were deeply influenced by English laws and Victorian norms. The marital exception to the IPC’s definition of rape was drafted on the basis of Victorian patriarchal norms that did not recognize men and women as equals, did not allow 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.”
Although under Article 14, the Indian Constitution guarantees equality, the marital law exception discriminates against females who have been raped by their own husbands by denying them equal protection from rape and sexual harassment.
The Exception to Section 375 creates two categories of women based on their marital status and prioritizes one unmarried woman in protecting them from rape than married ones — that’s a direct contradiction of every Indian citizen being guaranteed equal protection of laws.
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 “[s]exual 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 a 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.
But arguably, the most stubborn obstacle in the way of India criminalizing marital rape is none other than the Union Government itself.
It’s against Indian culture:
August 2019, former Chief Justice of India Dipak Misra said that marital rape should not be made a crime in India, The Times of India reported, “ it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.”
The argument is that social customs and religious beliefs, combined with staggering illiteracy create an environment wherein marital rape cannot be criminalized seemingly because people aren’t ready for it.
The Indian government has suggested that those seeking to stop women being raped by their husbands were “blindly” following Western customs, The Times of India reported: “This country has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, the mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalizing marital rape.”
The government also argues that if in such circumstances, they criminalize marital rape, a majority of marriages will fall apart presumably because women will stand up to their rapist husbands (who will then become criminals in the eyes of law) and avail of the legal recourse they have to seek justice and protection.
But In Independent Though v. Union of India, the Court specifically explained that marriage is personal and nothing short of the Indian State criminalizing marriage itself can destroy the institution of marriage. It said if divorce and judicial separation have not destroyed the institution of marriage, criminalizing marital rape certainly cannot either. Interestingly, the High Court of Gujarat also recently ruled that the non-consensual act of marital rape violates the trust and confidence within a marriage and that marital rape is what has damaged the institution of marriage.
Women will misuse any law against marital rape:
In an affidavit submitted to the Delhi High Court, the union government said a law criminalizing marital rape can become an “easy tool to harass the husbands,” absurdly arguing “if all sexual acts between a husband and his own wife qualify to be marital rape then the judgment whether it is marital rape or not will singularly rest with the wife.
The argument states that women will falsely accuse their husbands left, right and center — has been used time and time again for various domestic violence laws enacted to protect women in India including the Protection of Women from Domestic Violence Act, the Dowry Prohibition Act and Section 498A of the IPC, which criminalizes physical and mental cruelty against a woman by her husband or his family.
Even if some women misuse the law, that’s what the judiciary is there for — to weed out the false cases and dismiss them with an appropriate penalty! To quote the Gujarat High Court judgment again, Justice J.B. Padriwala says: “Let it be stressed that the safeguards in the criminal justice system are in place to spot and scrutinize fabricated or false marital complaints, and any person who institutes untrue and malicious charges, can be made answerable in accordance with the law.
The misuse argument is also faulty in that it ignores how disadvantaged women are even to use the marital rape law if it exists, let alone misuse it. A lack of resources, access to legal help and stigma all provide resistance to women actually achieving justice under these laws, as can be seen from rape and domestic violence laws.
Once married, women’s perpetual consent is implied:
The idea that once a woman is married, she hands over never-ending, continuous sexual consent to her husband is a deeply embedded one in our society.
84th Law Commission of India stopped short of criminalizing marital rape even though it recommended that the age of implied consent in case of a married woman be raised to 18 years. The report of 172nd Law Commission published in the year 2000 also refused to criminalise marital rape in India.
Backing the long-standing demand of the women’s activists that marital rape be considered as an offence, the Justice J.S. Verma committee has said marriage or any other intimate relationship between a man and a woman is “not a valid” defence against sexual crimes like rape.The Verma Committee report 2013 said,”According to the common law of coverture, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Moreover, this consent could not be revoked,”
Minister of state for home Haribhai Chaudhury said in the Lok Sabha that the department-related parliamentary standing committee on home affairs presented its 167th report on the Criminal Law (Amendment) Bill, 2012 in the Rajya Sabha on March 1, 2013. The committee deliberated the amendments to section 375 of IPC, including the issue of marital rape, and observed that if marital rape is brought under the law, the entire family system will be under great stress and the Committee may perhaps be doing more injustice.
What is more important tradition or women’s right, her consent? Think. Marriage does not thrive on sex. Marriage does not mean that the woman is all time ready, willing and consenting for sex. The man will have to prove that she was a consenting party.” It really is that simple.
Recently Kerla High court passed a landmark judgement. That is,”Marital rape amounts to cruelty and a ground for judgment.”
A two judge bench of Kerala high court has passed a Landmark order acknowledging woman’s autonomous and individual rights in a marriage .The bench of justices A Muhamed Muhamed Mustaque and Kauser Edappagath delivered the order on July 30 while hearring women’s petition seeking a divorse from her husband on the grounds of harassment and cruelty.
One cannot say that marital rape should be criminalised everywhere because large numbers of factors are associated with it which cannot be ignored altogether. We have to look at both the aspects of this debate as this is a very sensitive issue and has been criminalised in many countries of the world. But the world community (including India) must recognise the fact that the crime against the women are on rise day by day and the time is ripe to give importance to their rights including right to say ‘no’ when it comes to sexual matters, whether in or out of marriage.
