Marital rape is “the act of sexual intercourse with one’s spouse without the spouse’s consent”. According to a survey conducted by World Bank in 2017, data shows that India is among the 35 countries in the world where marital rape is not criminalized. Moreover, it is mentioned in the exception 2 of Section 375 of IPC that “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” However, this was read down in the case of Independent Thought v. Union of India as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”. Though this isn’t a major victory, still it has paved the path for bringing in the required changes in our law as well as in our society. The only remedy for Marital rape victims is to take recourse to the Protection of Women from Domestic Violence Act 2005 (PWDVA). Its definition of domestic violence, includes among other things, sexual abuse which is defined as, ‘any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of women’. The definition here does not specify the acts that constitute sexual abuse. The PWDVA, which came into force in 2006, outcasts marital rape. However, it offers only a civil remedy for the offence.
For many years, human rights activists are fighting for criminalizing martial rape but it doesn’t seem to be happening any time soon because of the various façade reasons such as- criminalizing martial rape may destablise the institution of marriage or acknowledging the existence of marital rape means denying the implied consent from women and, women might highly misuse the law and “harass husbands” as said in the case of RIT Foundation vs Union of India.
The non-existence of laws that criminalize marital rape endangers various fundamental rights of women. Article 14 of the Indian Constitution ensures equality before law and states 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 and prohibits discrimination on grounds of religion, race, caste, sex or place of birth.” Though the Constitution guarantees equality to all, Indian legal code discriminates against female victims who are raped by their own husbands. At the time the IPC was drafted in the 1860s, a wife wasn’t considered an independent legal entity. Rather, she was thought to be the personal estate of her husband. As a result, she didn’t possess many of the rights now given to her as an independent legal entity, including the right to file a criticism against another underneath her own identity. Exception 2 of Section 375 of IPC, that basically exempts actions perpetrated by husbands against their wives from being thought-about acts of “rape,” is essentially influenced by and derived from this already existing philosophy of merging the woman’s identity thereupon of her husband. The roots of this doctrine are often traced back to British colonial rule during the Victorian era. India was a British colony throughout the nineteenth century. All Indian laws enacted at this point were deeply influenced by English laws and Victorian norms. The marital exception to the IPC’s definition of rape was drafted on the idea of Victorian patriarchal norms that didn’t recognize men and ladies as equals, didn’t allow married women to have property, and incorporated the identities of husband and adult female underneath the “Doctrine of Coverture.” But times have changed. Indian law currently affords husbands and wives separate and freelance legal identities, and far jurisprudence within the era is expressly involved with the protection of girls. This concern is made clear within the plethora of Statutes intended to guard women from violence and harassment that are passed since the flip of the century, such as “The Protection of Girls from Violence, Act” and the “Sexual Harassment of Girls at Geographic Point (Prevention, Prohibition and Redressal) Act.” Exception 2 violates the right to equality enshrined in Article 14 insofar as it discriminates against married girls by denying them equal protection from rape and harassment. Exception 2 creates classes of girls supported their legal status and immunizes actions perpetrated by men against their wives. In doing so therefore, the Exception makes doable the victimization of married girls for no reason aside from their legal status while protecting widowed women from those same acts. Exception 2 of Section 375 of IPC’s distinction between married and widowed girls conjointly violates Article 14 because the classification created has no rational reference to the underlying purpose of the statute. In Budhan Choudhary v. State of Bihar and State of West Bengal v. Anwar Ali Sarkar, the Supreme Court has held that any classification underneath Article 14 of the Indian Constitution is subject to a reasonableness test which will be passed as long as the classification has some rational nexus to the target that the act seeks to realize. However Exception 2 frustrates the aim of Section 375: to guard women and punish those that engage in the inhumane activity of rape. Exempting husbands from penalisation is an entirely contradictory objective thereto. Put simply, the results of rape are equivalent whether a lady is married or widowed. Moreover, married women may very well find it harder to flee abusive conditions because they’re legally and financially tied to their husbands. Actually, Exception 2 indirectly encourages husbands to forcefully enter into sexual activity with their wives, as they know that their acts aren’t discouraged or penalized by law. As a result of no rational nexus i.e. no logical relation between an action and effect are often interpreted between the classification created by the Exception and thus the underlying objective of the Act. It doesn’t satisfy the test of reasonableness and therefore violates Article 14 of the Indian Constitution.
Exception 2 of Section 375 of IPC is even violative of Article 21 of the Indian Constitution. Article 21 reads as follows- “Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.” The Supreme Court has taken this clause in numerous judgements to increase its scope beyond the strictly literal guarantee to life and liberty so much so that it has held that the rights enshrined in Article 21 include the right to health, privacy, dignity, safe living conditions, and safe surroundings, among others. In recent years, courts have begun to acknowledge the right to abstain from sexual intercourse and to be independent from unwanted gender enshrined in these broader rights to life and private liberty. In the State of Mysore v. Krishnappa case, the Supreme Court held that “sexual violence aside from being a dehumanizing act is associate degree unlawful intrusion of the proper to privacy and holiness of a feminine.” Within the same judgment, it held that non-consensual sexual activity amounts to physical and sexual violence. Later, in Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the proper to form choices associated with sexual intercourse with the right to non-public liberty, privacy, dignity, and bodily integrity underneath Article 21 of the Constitution. Most recently, the Supreme Court has expressly recognized in Article 21, the right to form choices relating to intimate relations. In Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court recognized the proper to privacy as an elementary right of all voters and held that the proper to privacy includes “decisional privacy mirrored by a capability to form intimate choices primarily consisting of one’s sexual or generative nature and decisions in respect of intimate relations.” Forced sexual cohabitation may be a violation of that elementary right. The above rulings don’t distinguish between the rights of married women and unmarried women and there’s no contrary ruling stating that the individual’s right to privacy is lost by marital association. Thus, the Supreme Court has recognized the proper to abstain from sexual intercourse for all girls, regardless of their legal status, as an elementary right presented by Article 21 of the Constitution. Additionally, Exception 2 of Section 375 of IPC violates the right enshrined in Article 21 to measure a healthy and dignified life. As mentioned on top, it’s well settled that the “right to life” envisaged in Article 21 isn’t merely a right to exist. The courts have repeatedly held that the “right to life” includes the right to live with human dignity. Nonetheless the terrible existence of Exception 2 to Section 375 of the IPC, that fails to discourage husbands from partaking in acts of forced sexual contact with their wives, adversely affects the physical and psychological state of girls and undermines their ability to live with dignity. The discussions above clearly mirror that Exception 2 to Section 375 of the IPC is an infringement of Article 14 and Article 21 of the Constitution. It’s time that Indian jurisprudence understands the inhumane nature of this provision of law and strike it down.
According to me, it is high time we raise our voice against this sensitive topic with full force which is becoming a major issue in the society. As the society feels that what is happening is right and happens everywhere and as the developments in law and society go hand in hand, it becomes even more important to raise our vioce against the patriarchal system of thinking. So, we need to make the society understand the seriousness and importance of the topic as concept of marital rape in India is the epitome of what we call an ‘implied consent’ which is completely unfair.