Author- Ujjwal Tripathi, Mrigank Kumar Singh

 

  • Abstract

Marital rape is not a new offence that suddenly came into light. It was always rooted in our patriarchal society hiding deep behind the curtains of ancient laws and presently under exception 2 of section.375 of Indian Penal Code, 1860. Section 375 of Indian Penal Code, recognizes rape in India but exception 2 of this section exempts marital rape by a husband with his wife of more than fifteen years of age from its ambit.

The article aims to understand the term marital rape and analyze how exception 2 of Section 375 violates article 14 and article 21 of the Indian constitution as well as basic human rights of wives in India.

  • Introduction

Rape is a heinous offence defined under sec.370[1] of Indian Penal Code (IPC). It comprises any type of sexual assault that involves non-consensual sexual intercourse with a woman. However, unwilling sexual intercourse between a husband and a wife who is over the age of fifteen is exempt from this rule. The rationale behind this rule is that, when IPC was enacted in 1860 law of coverture was prevailing in UK and married women were not treated as a separate legal entity. Husband and wife were considered as one entity. Wives were merely a chattel of their husbands.[2]

Since, 1860 IPC has gone through multiple amendments and India has removed many unconstitutional pre-colonial laws but it is a disheartening fact that we have still not removed this exception 2 from sec.375. Recently, in Independent Thought vs. Union of India[3] case, the Supreme Court criminalized unwilling sexual intercourse with wife of fifteen to eighteen years of age.

India being a patriarchal and conservative society has always considered man superior to women and that is the reason while the world is recognizing marital rape as a serious offence meanwhile, our country remains among one of the thirty-six countries that still have not criminalized marital rape.[4]

In Indian society marriage is considered as a sacred institution. It is implied that both husband and wife when come under this institution have implied consent for sexual intercourse. In our ancient values, marriage leads to a “license of sex”.[5] According to Manusmiriti, a wife who denies having sex with her husband is not regarded ideal.

  • Marital rape and Indian laws

Rape, sexual assault, domestic violence, acid attack, eve teasing, stalking, dowry death etc are different types of offence committed against women in India. Another serious offence which we often forget to pay attention is marital rape. A rape is an extreme form of male tyranny that deprives women of their basic human rights and marital rape is a sexual intercourse by spouse with his better half without her consent or committed under force.

The definition of rape under section 375 of the IPC is limited to nonconsensual or forceful vaginal penetrations. Consent under section 375 of the Indian Penal Code necessitates a thorough comprehension of the circumstances, acts, and consequences of the proposed Act.[6] The provision of rape mentions as its exception clause- “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.”[7] Further, under Section 376[8] of IPC the punishment of rape by the husband with his wife leads to detainment of husband for two years with fine or both provided the wife is not more than twelve years of age.

Hence, marital is considered as rape only if the spouse is under fifteen years of age and also the punishment given for marital rape is not justified. The seriousness of this offense is lacking.

Recently, in Independent Thought v. Union of India[9] the hon’ble court held that a husband who rapes his minor wife (i.e. under the age of 18) is not exempted from sec. 375 of penal code and is liable for the offence of rape. According to the Supreme Court, the distinction between unmarried and married female child under the age of eighteen is arbitrary. This judgment gave a new understanding to this exception. Still, it did not declare the exception completely unconstitutional leading to only partial victory of women rights in India.

  • Constitution of India and marital rape

Violation of article 14

Every person in India is guaranteed equality before the law and equal protection of the law under Article 14 of the Indian constitution. It states that “[t]he State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Equality before the law means that the state does not deny its citizens equal protection under the law. Equal protection of the laws, on the other hand, indicates that the state is required to provide special treatment to people in different situation.[10]

The exception of section.375 violates the equality provision as the husband can have sexual intercourse with his wife (not being a minor) without her consent and such act does not amount to the offence of rape under penal laws.

The classification is based on marital status i.e., married and unmarried women and the object this classification ought to achieve is family unity and protect marriage institution. But this classification only promotes class legislation by giving arbitrary privilege to husbands.[11] The Supreme Court held in Budhan Choudhary v. State of Bihar[12] and State of West Bengal v. Anwar Ali Sarkar[13] that any classification made under Article 14 of the Indian Constitution is subject to a reasonableness test that can only be passed if the classification is rationally related to the goal of the act. Exception 2 defeats the objective of section 375 because it arbitrarily exempts the husbands from punishment because the consequence of rape is the same whether a woman is married or not.[14]

Violation of article 21

Exception 2 violates article 21 of the Indian constitution. The article states that “no person shall be denied of his life and personal liberty except according to the procedure established by law.”[15] The Supreme Court has interpreted in various judgments the meaning of the word “life and personal liberty” and held that it does not amount only to bodily injury. It includes privacy, dignity, movement, safety etc in its ambit.

The court in State of Maharashtra v. Madhukar Narayan Mardikar[16] found that a woman has the right to defend herself against an unwanted sexual assault, even if such woman is of easy virtue. Recently, in a landmark judgment of Justice K.S. Puttuswamy (Retd.) v. Union of India,[17] case the Supreme Court held that a person has the right to make own choices relating to intimate relations. Marriage, family, procreation, and home are all covered under privacy. Forced sexual acts even with a legal spouse are inhumane and ruthless, infringing on Article 21’s right to privacy and individual autonomy.

Exception 2 also violates right to live a healthy and dignified life under article 21. Right to life is not just limited to a mere physical existence but it includes right to live with human dignity.[18] But this exception fails to punish the husband in case the wife is not a minor and that leads to physical as well as mental harm to such woman. Ultimately, restricting them to live a dignified life.

  • Conclusion

Marital rape is not a new offence that has suddenly pop up. It was always rooted in our patriarchal society hiding deep behind the ancient laws and presently under exception 2 of section.375 of IPC. It is the most inhumane and worst form of offence committed against a woman at the level of family. People don’t discuss this crime openly because for them marriage is a “license for having sex” with the spouse. For them marriage implies consent for sexual intercourse.

Rape is rape. The law should not protect the rapist by the layer of marriage. The consequence of rape by the victims are same. It violates her fundamental as well as human rights.

The time has changed. Women are no longer men’s chattel they have their own legal entity. It is high time now. We need to analyze how forced sex in marriage violates women’s individual autonomy. Women’s basic human rights cannot be infringed for the sake of marital privacy. Consent and willingness of a woman (regardless of her marital status) for sexual intercourse shall be of paramount importance. Even in marriage No means No.

  1. Indian Penal Code § 375, No. 45 of 1860, India Code.

  2. Jone Johnson Lewish, Law of Coverture, ThoughtCo., (Aug. 21, 2021, 9:29 PM), https://www.thoughtco.com/coverture-in-english-american-law-3529483

  3. Independent Thought v. Union of India, (2013) 382 SCC (2017) (India).

  4. Marital rape in India: 36 countries where marital rape is not a crime, India Today, (Aug. 21, 2021, 9:29 PM), https://www.indiatoday.in/education-today/gk-current-affairs/story/marital-rape-312955-2016-03-12

  5. Sakshi Kanodia & Ranjabati Ray, Why Penalize Marital Rape, IOSR-JHSS Vol. 21, Issue 9, (Aug,21, 2021)

    pp. 49-55.

  6. Ankita Yadav understanding marital rape in india: a discourse on textual and

    constitutional perspective, 11 RMLNLUJ (2019) 81

  7.  Indian Penal Code § 375, No. 45 of 1860, India Code.

  8.  Indian Penal Code § 376, No. 45 of 1860, India Code.

  9. Independent Thought v. Union of India, (2013) 382 SCC (2017) (India).

  10. Supra note 5

  11. Supra note 5

  12. 1955 AIR 191

  13. State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75 (India).

  14. Sarthak Makkar, Harvard Human Rights Journalhttps://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/

  15.  INDIA CONST. art. 21.

  16. AIR 1991 SC 207

  17. Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161 (India).

  18. Maneka Gandhi vs. Union of India AIR 1978 SC 597


Please follow and like us:

By admin

Leave a Reply

Your email address will not be published. Required fields are marked *