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Marital Rape should be Criminalized

ABSTRACT

Rape is an offense u/s 375 of The Indian Penal Code, whereas marital rape is not yet considered as a crime under The Indian Penal Code.


India is one of the thirty-six countries that still have not criminalized marital rape. The Supreme Court of India and various High Courts are currently flooded with writ petitions challenging the constitutionality of Exception 2 of section 375 of The Indian Penal Code.


Exception 2 of section 375 of The Indian Penal Code shows that there is some concern in the minds of the judiciary regarding marital rape, but this exception clearly says that non-consensual sexual intercourse between a married couple where the woman is above the age of 15 years is not rape. This age bar is completely baseless. We need to shine some light on the phrase NO MEANS NOregardless of the women’s age and marital status.


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 any 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.


The times have changed. We need to keep in mind the changing circumstances and the development of society. There is a need to criminalize marital rape now.


MARITAL RAPE SHOULD BE CRIMINALIZED:

Rape is an offense u/s 375 of The Indian Penal Code, whereas marital rape is not yet considered as a crime under The Indian Penal Code.


Marital rape is not criminalized and is largely not viewed as rape by Indians due to the sacred nature of marriage in Indian culture.


Marital rape has immunity in our constitution, in our laws.

What is the scenario all over the world?[1]

· Poland was the first country to criminalize marital rape in 1932 and it included it in their constitution as a criminal offense.

· Australia was the first common law country to criminalize marital rape.

· Since the 1980’s many other countries have criminalized marital rape. Some of these countries are Canada, United States, Malaysia, South Africa.


We can see that these countries criminalized marital rape at that time, so why can’t a developing country like India criminalize it now?


India is one of the thirty-six countries that still have not criminalized marital rape.[2] The Supreme Court of India and various High Courts are currently flooded with writ petitions challenging the constitutionality of Exception 2 of section 375 of The Indian Penal Code.

The Indian Penal Code section 375 considers rape as an offense. The words we need to focus on are WITHOUT HER CONSENT. There is an exception to this section.


The exception says “Sexual Intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”.[3]


When we are paying so much attention to the words ‘without her consent’, why are we discriminating between married and unmarried women?


When a woman has a right to say yes in consensual sexual intercourse, she should also have a right to say no. This right is taken away as soon as she is married. Marital rape is a violation of human rights. We can say that if marital rape is criminalized in India it may be misused. But like every other law, it has its pros and cons. There are enough provisions giving protection to women under the domestic violence act but none of those laws talk about Marital rape.


There are a lot of independent women in our society, who can support themselves if they are a victim of marital rape but most of the women in rural households are illiterate, uneducated and are fully dependent on their husbands. Is this the reason for marital rape not being criminalized in India?


If Marital rape is criminalized it will hamper the sacred nature of marriage in Indian Culture and that is why whenever a couple files for a divorce even the family court gives them time to reconsider and think about saving their marriage.


We need to understand something, rape is not just a crime. It is an act of violence that scars a woman for her entire lifetime. No means No, it should not be linked with a woman’s marital status.


We know that it would be very difficult to define Marital Rape in The Indian Penal Code. Since the couple who are already married may be involved in consensual sexual intercourse and differentiating that with non-consensual sexual intercourse would be very difficult, but that is why the term CONSENTneeds more clarity. The evidence for marital rape will be very difficult to prove, but it’s not impossible.


Exception 2 of section 375 of The Indian Penal Code shows that there is some concern in the minds of the judiciary regarding marital rape, but this exception clearly says that non-consensual sexual intercourse between a married couple where the woman is above the age of 15 years is not rape. This age bar is completely baseless. We need to shine some light on the phrase NO MEANS NOregardless of the women’s age and marital status.

Exception 2 violates Article 21’s right to live a healthy and dignified life. As mentioned above, it is well settled that the “right to life” envisaged in Article 21 is not merely a right to exist.[4]


The Supreme Court, in the State of Maharashtra vs Madhukar Narayan Mandikar,[5] has referred to the right of privacy over one’s body. In the preferred case, it was decided that prostitutes have the right to refuse sexual intercourse as she is not married to anyone who is putting sexual demand before her. What is hard to digest is to know that all stranger rapes have been penalized and except wives, all females, have been given the right of privacy over their bodies.


The most recent change came through the Supreme Court’s decision under Independent Thought vs. Union of India in October 2017. The case was filed as a Public Interest Litigation by the non-governmental organization, Independent Thought, to protect child brides from marital rape. Exception 2 under Section 375 of the Indian Penal Code provides an exemption to rape for men having sexual intercourse with their wives under the age of fifteen. In Independent Thought, Supreme Court Justices Madan B. Lokur and Deepak Gupta rationalized that Indian Penal Code, Section 375, Exception 2 should not apply to child brides between the ages of fifteen and seventeen. The Court held that Exception 2 creates an arbitrary and discriminatory distinction between a married girl child and an unmarried girl child. The Supreme Court offered well-supported and rational arguments to defend its decision to change the exception from “under fifteen years of age” to “under eighteen years of age. The Court stipulated that the distinction between the married girl child and the unmarried girl child is contrary to the spirit of the Constitution of India (“the Constitution”), specifically Article 15(3) and Article 21.


The concurring judgment also pointed out equal protection clause under Article 14 of the Constitution. Similarly, the Court identifies that the Constitution and the Protection of Human Rights Act, 1993, guarantee liberty and dignity as protected rights and to allow a man to engage in forced sexual intercourse with his child bride would be a violation of these rights. The Supreme Court also recognized the importance of a woman’s autonomy over her own body, her right to bodily integrity, and her right to privacy. Furthermore, the Court pointed out the inconsistencies that arise from the fact that husbands can be charged with lesser sexual crimes, while enjoying an exemption from the much more serious crime of rape. Lesser crimes for which the husband can be prosecuted include intent to outrage her modesty, sexual harassment, assault or use of criminal force against woman with the intent to disrobe, voyeurism, and stalking. There are no marital exception clauses associated with any of these crimes. The decision under Independent Thought v. Union of India was a milestone for advocates in furthering the fight against marital rape.

In 1736, Sir Matthew Hale of England had declared that “the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.”[6]


William Blackstone in 1753 when he defended the common law doctrine of coverture. By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything [sic] . . . and her condition during her marriage is called her coverture.


Nimeshbhai Bharatbhai Desai v. State of Gujarat, (2017) High Court of Gujarat, India has recently argued that the non-consensual act of marital rape violates the trust and confidence within a marriage and the prevalence of marital rape in India is what has damaged the institution of marriage.


The argument that marriage implies consent is still used today in India to justify the marital rape exemption in the penal code as seen by the Law Commission of India’s 172nd Report on Review of Rape Laws of 2000.


The marital rape exception can be seen as being contrary to many of India’s national laws. The exception is also argued to be a violation of various constitutional guarantees. Furthermore, the marital rape exception violates a number of India’s international law obligations. Aside from legal arguments under national laws, the Constitution, and international law, arguments are also made about the repercussions of marital rape on a woman physically and psychologically. Lastly, the underlying justifications offered for the exception to marital rape reflect old and outdated notions that have been rejected by various courts around the globe.


The Court has acknowledged that sexual violence is an intrusion into the right to privacy of a female. Under State of Maharashtra v. Madhkar Narayan,[7] the Supreme Court held that every woman is entitled to sexual privacy. hence, legalizing rape in the context of marriage violates a woman’s right to privacy guaranteed under Article 21 of the Constitution.


Additionally, the Supreme Court of India has interpreted Article 21 to encompass the right to good health under the right to life, CESC Ltd. v. Subhash Chandra.[8] Rape, in any context, is known to cause a plethora of physical and psychological damage. Sexual violence is known to cause depression, anxiety, pregnancy complications, sexual transmitted diseases as well.



CONCLUSION


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.[9]As a result, she did not possess any 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.

The times have changed. We need to keep in mind the changing circumstances and the development of society. There is a need to criminalize marital rape now. Abuse of Law is not an excuse to not criminalize marital rape. We find an abuse of law in so many cases nowadays.


We talk about our traditions and customs. In our country, Sati and Child Marriage were customs that had great importance. When these customs can be removed why can’t we take a progressive step to criminalize marital rape? When a law is introduced it becomes a moral standard for society, so it is the best step.


While framing our constitution some of the laws were taken from other constitutions and they were molded according to our country, so the same thing can be done for marital rape laws as well to avoid misuse.


Exception 2 to Section 375 of the IPC is an infringement of Articles 14 and 21 of the Constitution. It is time that Indian jurisprudence understands the inhumane nature of this provision of law and strikes it down.


There is a demand for change in the definition of rape. Indian law must be equivalent to men and women irrespective of being married or single. Marital rape is not just a happening behind an iron curtain, whereas it is a crime issue of the right to privacy of women. Marrying a man doesn’t mean giving consent for physical and mental torture to one’s self by fulfilling the sexual desire of the person to whom you are married.


The right to life is an essential right guaranteed by all human rights treaties and customary international law. Specific guarantees to the right to life can be found in the ICCPT and the UDHR. Violence against women in the context of intimate partner violence has been recognized as a leading cause of death around the globe. Marital rape also equates to other consequences that infringe on the right to life including increases in miscarriages, complications during pregnancies, unsafe abortion practices, and the higher likelihood of contracting sexual transmitted diseases, all of which can lead to fatal results. As a result, criminalization of marital rape is a fundamental obligation states must undertake in order to meet their international law obligations. Marital rape also violates the right to liberty and security of person. The right to liberty is again guaranteed by the ICCPR and UDHR.141 Article 9 of the ICCPR requires State parties to respond appropriately to patterns of violence against women.


[1] https://blog.ipleaders.in/marital-rape-criminalised-india/(Visited on February 29, 2020). [2] Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016. [3] The Indian Penal Code (45 of 1860). [4] https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/#_ftnref7(Visited on March1, 2020) [5]AIR 1991 SC 207, 1991 (61) FLR 688, JT 1990 (4) SC 169 [6] https://www.indialawjournal.org/archives/volume2/issue_2/article_by_priyanka.html (Visited on March 1,2020). [7] AIR 1991 SC 207, 1991 (61) FLR 688, JT 1990 (4) SC 169, (1991) IILLJ 269 SC, 1990 (2) SCALE 849, (1991)1 SCC 57, 1991 (1) UJ 109 SC. [8] 1992 AIR 573, 1991 SCR Supl. (2) 267 [9] To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6) Harv. L. Rev. 1255,1256 (1986).



Author Details: Vedant Saraf (Amity Law School Kolkata)

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