Marital Rape in India – Legal Position
Marital rape means an unwilling forced sex by a husband against his wife. But a very controversial question that comes to mind is whether a husband is accused of raping his own wife?
Table of Content:
- Introduction
- Violation of Article 14
- Violation of Article 21
- Defeat the spirit of section 375
- Recommended Measures
- Conclusion
Introduction
Rape is a heinous crime which affects not only affects a woman’s modesty but also destroys or harms her dignity. It is a kind of sexual harassment that is severe in nature. Rape is a crime which is prevailing in our society for a very long period even we can trace that from mythology. The offense of rape is punishable under section 375 of the Indian Penal code, 1860. In such cases, it is the accused upon whom the burden of proof lies. The person who found guilty of rape liable for imprisonment which can be extended up to ten years with a fine and if the rape is followed with death then the punishment for imprisonment can be extended to life time imprisonment.
Marital rape means an unwilling forced sex by a husband against his wife. But a very controversial question that comes to mind is whether a husband is accused of raping his own wife? It is such because as per the personal laws on marriage, it defined marriage means as a sacramental relationship between a man and woman with the ultimate goal of procuring children. Therefore, the wife’s consent is considered to be implied for the sex with her husband. But with the passage of time, various countries considered it a criminal offense. In India the exception 2 provided in section 375 of the Indian Penal Code, 1860 provides that when a man has sexual intercourse with his wife (both are above 15 years of age) would not amount to rape. But in various cases, the question regarding marital rape arises. The Supreme Court and various High courts are receiving tons of petitions challenging the constitutional validity of the exception 2 given under Section 375 of the Indian Penal Code, 1860 on the grounds of infringement of the fundamental rights enshrined under Article 14 and 21 of the constitution of India. Also, the exception provided under the section defeats the spirit of the concerned section by providing immunity to the husband for the exemption from rape charges although he fulfills the criteria mentioned under the section, and thus somewhere this exception itself defeats the purpose or objective of the section.
Violation of Article 14:
Article 14 of the constitution of India guaranteed the fundamental right of right to equality and equal protection of law to every person in the territory of India. The primary aim behind this right is to ensure every person in India that no matter how rich or poor; famous or infamous; politician or ordinary public etc. all are equal in the eye of the law but on the other criminal law in the violation of this Article discriminates between the women according to their marital status. Section 375 of the Indian Penal Code, 1860 classified women into two categories, i.e., one whose marital status is immaterial if a person who rapes her or tries to sexually assault her is not her husband and one who is married but the accused is her husband. Exception 2 of section 375 provides immunity to a husband for raping her wife and therefore, due to this exception women who are prey to marital rape don’t have equal protection of the law. In Budhan Chaudhary v. State of Bihar [AIR (1955) SC 191 (India)] and State of West Bengal v. Anwar Ali Sarkar [ AIR (1952) SC 75 (India)] the Hon’ble Supreme Court held that a reasonable test will conduct to check whether an act has any kind of rational nexus with Article 14 or not? Exception 2 of section 375 on the other hand shook the real meaning of the section by discriminating between the women on the basis of their marital status. Thus an act or any statute which is in violation of Article 14 of the Constitution of India shall be examined in such a way so that it doesn’t led to the failure of machinery provided under Article 14.
Violation of Article 21:
Article 21 of the constitution of India provides a right to life and liberty until barred by the procedure established by the law. This Article also enshrined the right to live with dignity and integrity, privacy, a healthy environment, etc. In the State of Karnataka vs Krishanappa [(2000) 4 SCC 75] the apex court held that any kind of sexual violence will amount to intervention to the right of privacy guaranteed under Article 21. In the landmark judgment of Justice K.S. Puttuswamy (Retd.) v. Union of India [AIR 2017 SC 4161] the apex court declared the right to privacy as the fundamental right of the citizen of India. The similar contention of the apex court was held in Govind v. State of Madhya Pradesh [AIR 1975SC 1378, (1975) 2 SCC 148] and Neera Mathur vs Life Insurance Corporation [1992 AIR 392]. Thus forced sexual relations amounted to be a violation of the fundamental right. The offense of sexual harassment and related aspects is a very heinous crime and considered to be inhuman activity and therefore, such an offense will also act as an intruder to the dignity of a woman.
Also, in the case of the State of Maharashtra v. Madhukar Narayan [AIR 1991 SC 207, (1991) 1 SCC 57], the apex court held that women have their sexual privacy and no one is allowed to interfere in her privacy without her consent. In Suchitra Srivastava v. Chandigarh Administration [(2008) 14 SCR 989] the apex court held that the choice regarding the sexual activity of a person is very much covered under the provision of Article 21 of the Constitution of India
Defeat the spirit of Section 375:
The purpose or the policy behind section 375 is to provide justice to the woman with whom an inhuman activity i.e. a sexual assault or a rape happened with her by punishing the accused of such offenses but the exception provided under the act acts as immunity to a husband to force her wife for sex though her consent doesn’t matter. Therefore, it defeats the objective of the section. This section someone led to the failure of the machinery of section 375 of the Indian Penal Code, 1860.
Recommended Measures
Recently in the landmark judgment of Independent Thought v. Union of India [(2013) 382 SCC (2017)], the Hon’ble Supreme Court criminalizes and penalized unwanted or non-consented sex in a marriage between the age of fifteen to eighteen years. But still, after this judgment, various petitions were filed in the Supreme Court as well as in the various High Courts to declare exception 2 of section 375 of the Indian Penal Code, 1860 wholly unconstitutional.
After the Nirbhaya Rape Case of 16th December 2012, JS Verma Committee also suggests and recommended that the exception to section 375 shall be removed so that the section must be implemented more strictly and women must feel safe or able to save themselves from such kind of sexual abuse.
Also in 2013, United Nations Declaration on the elimination of violence against women recommended that the Indian legislature should penalize the offense of marital rape.
Conclusion
We can conclude that issue of marital rape is not yet penalized in a true sense. Earlier after marriage husband and wife would be considered as one and also a stereotype thinking was also prevailing in the society that women are the chattel of a man. But as time changes, the table turns around and now man and woman would be considered as separate individuals. Marital rape should be considered as an offense in itself because in such cases the victim lady has to live with the accused and suffers more. Many countries recognize it as an offense but India is still left to recognize it as an offense and currently, the cases related to marital rape is judge only on the basis of constitutional provisions and some aspects of section 375 and various judicial decisions. . But it is a need of a society to make marital rape penalized as it is high time to provide justice to a woman for the sexual offense that happened with her irrespective of her marital status as the number of cases is kept on increasing.