(“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”)
The world’s Largest Democracy is unfortunately lacking when it comes to development in legislation and amendments as per the changing needs of the society. The delayed disposal of cases is one of the reasons behind the same. Same is in the case of Marital Rape Legislation.
Law has always been vague on marital rape. Marital Rape is largely experienced by women not just in India but all over the world. With the evolution of society, people started to demand for the justice and proper laws on marital rape. India is amongst the thirty-six countries which have not yet criminalized marital rape. All these countries have their own judgments and arguments of not criminalizing marital rape.
Panorama on Marital Rape varies widely from nation to nation. Deem on this stumbling block has always been mismatching to each other. Some Islamic countries like Afghanistan, Algeria, Bangladesh, Pakistan, etc. talks about the elixir of shariyat and the importance of their customs playing role in not criminalizing marital rape. China is a country where law for same-sex couples or victims of marital rape are not protected. Countries like Oman, Myanmar, India considers marital rape as crime depending on the age of the couple.
GUJARAT HIGH COURT ON MARITAL RAPE –
“It is time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.” – J.B. Pardiwala in the case of Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018.
By draining the essence of this judgment we in light with this case find the lack of clarity and justice. Court noted that as per the existing laws the wife cannot initiate proceedings against her husband for the offence of rape punishable under Section 376 of Indian Penal Code as the idea is that, by marriage a woman gives irrevocable consent to her husband to have sex with her any time he demands it. However in this case Law Lord denied and proclaimed this view and concept and criticized this view and interpreted the statute differently.
Weightage of Section 375 of Indian Penal Code for Marital Rape
Section 375 which states about Rape along with Section 376 with its punishment doesn’t reveal any context of marital rape as a criminal offence. Though in Exception – 2 of Section 375 which elucidates as-
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
The legislatures have try to understand quintessence of two different laws here. Legislatures not only just Indian Penal Code, 1862 but has also tried to take out heart of Hindu Marriage Act, 1955. Legislatures has given more weightage of Family customs here. The purpose of the Hindu marriage act is to safeguard families and help them stay together the reason due to which this act specially enacts judicial separations. Sexual intercourse between husband and wife has been considered as a paramount key to the relationship reason which denial of sexual intercourse has also been given as a ground to divorce under Section-13 of the Act.
Considering the importance of sexual intercourse in a relationship which has given a role in Hindu Marriage Act too, the law makers have not found it appropriate to break the core of Hindu Marriage Act and indulge its involvement to Indian Penal Code. This gives the solution to marital rape to be considered as internal dispute in a family and hence considered as Domestic Violence and not Rape.
This thought of law makers should be interpreted more deeply and should consider the “consent” under section 375 as not “pre consent” but as a “consent given by choice at the moment”.
As given by many legislations, the ordinary reasons for supporting the same includes sanctity of marriage, cultural backgrounds, common law, historical perspective etc. The Union Government while advancing its arguments in an affidavit submitted before the Delhi HC said that 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.” Home Affairs minister Haribhai Chaudhary had said that marital rape can’t be made a criminal offence in India because of high illiteracy rate, poverty, extreme religious beliefs and the very ‘sanctity’ of marriage. The roots of these beliefs lies with the unfortunate colonization of India, because of which the laws were totally based on British Ideologies. The IPC imbibes the Victorian Norm of ‘Doctrine of Coverture’ which merged the identities of husband and wife with patriarchal ideologies did not recognized men and women as equals. A married woman was considered to be the chattel of her husband rather than an independent legal entity. Furthermore, the former Chief Justice of India Dipak Misra at a conference on ‘Transformative Constitutionalism in India’ in August 2019 said, “I don’t think that marital rape should be regarded as an offence in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.”
Article 13(2) of Constitution of India prohibits State to make any law which takes away or abridges the rights conferred by this Part (i.e. Part III) and any law made in contravention of this clause shall, to the extent of the contravention will deemed to be void. The Exception of Marital Rape is in contradiction with Fundamental rights provided under Article 14, 15, 21 and Right to Privacy but still has been overlooked and ignored by the legislature and the judiciary since a long time.
Article 14 and 15
The great right of Equality before Law provided under Article 14 of Constitution of India extending not only to its citizens but to the ‘any person’ as mentioned in the article has been overlooked seriously. The very definition of Rape under Section 375 of Indian Penal Code is a gender-based approach as it criminalizes unconsented and consented (in some cases) sexual intercourse with a woman by a man. Furthermore, its exemption in case of Married couples’ states, “Sexual Intercourse by a man with his own wife ……is not rape” is again gender-based. This puts the definition and its exemption under the immediate scrutiny of Equal Protection Clause in Article 14 and of Prohibition of Discrimination on grounds of sex as instated under Article 15.
The Hon’ble Supreme Court of India in Budhan Choudhary v. State of Bihar and State of West Bengal v. Anwar Ali Sarkar held that any classification under Article 14 is subject to a test of reasonableness that can be passed only if the classification has some rational nexus to the objective that the act seeks to achieve. But to the contrary, the distinction created in respect of rape of married and unmarried women violates Article 14 and the classification has no rational relation to the underlying purpose of the statute.
Article 21 and Right to Privacy
The fundamental right of Protection of Life and Personal Liberty except according to the procedure established by law has also been violated by the very ambiguous exemption of Marital Rape. The article’s ambit has occasionally been increased to various aspects like Right to live a dignified life, safe living conditions, safe environment, right to privacy etc.
The Supreme Court in The State of Karnataka v. Krishnappa held that non-consensual sexual intercourse amounts to physical and sexual violence further stating that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female”. The Supreme Court further in 2008 equated the right to make choices related to sexual activity has been equated with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution in Suchita Srivastava v. Chandigarh Administration.
The Right to live Healthy and Dignified life is being particularly violated because a husband forcing for unconsented sexual intercourse with wife impacts her mental and physical health severely. With this the dignity of wife is highly compromised too and unfortunately the law remain silent for the same. The presence of Exception 2 of Section 375 is acting more like a safety field and thus the husbands do not deter to act brutally and forcefully to their wives in sexual matters.
Deshana Doshi (Manipal University Jaipur)