Marital Rape in India

Marital Rape in India

Marital Rape in India

The current article defines the current legislation that may or do not shield marital rape in India under the Indian Penal Code (IPC) or any other act, as well as the reasons for punishment, where necessary.

The fundamental right to freedom and the right to life are enacted in Articles 19 of the Indian Constitution, respectively, for all citizens of India. This clearly means that every citizen of our country has the right to live a free and dignified life free of bigotry, abuse, or any other form of violation of these rights. However, because of the predominantly patriarchal confines of Indian marriage laws, the basic concept underlying these fundamental rights is violated clearly and on a wide scale, especially when it comes to gender-based or minority-based crimes.

The Indian Penal Code (IPC) also specifies that a husband is immune from prosecution for raping his wife, according to the wife’s age. This is a direct example of the new tradition in India being oppressive and highly discriminated towards women, in which the husband has absolute supremacy and legal recognition over the rights of the wife. According to the IPC’s second provision in Section 375, “sexual contact by a man with his own woman, the wife not being under the age of fifteen, is not rape.” Furthermore, the caveat for age was only applied to the IPC in response to many cases of child brides dying as a result of premature sex with their husbands.

India is one of thirty-six (36) nations that have yet to criminalize marital rape.  The Supreme Court of India and numerous High Courts are currently swamped with writ petitions on marital rape in India questioning the constitutionality of this exemption, and the Supreme Court recently criminalised unwilling physical intercourse with a wife between the ages of fifteen and eighteen in a landmark decision. This decision has resulted in a spike in the number of writs questioning the constitutionality of Exception as a whole. This article investigates the constitutionality of the Exception in light of current lawsuits.

1. The Indian Penal Code (IPC), 1860 on Marital Rape in India

Women in India face sexism, marital rape, and abuse on a regular basis in the home and at work, and many special and defensive pieces of legislation have been passed to shield women from such unwanted events. Furthermore, penal sanctions for women’s protection have been created, however, no rules specifically bar a man from raping his lawfully married wife except under the following circumstances :

a) Any sexual activity or sexual act committed by a man with his own wife while she is under the age of 15, as specified in Section 375 of the Indian Penal Code, 1860.

b) Sexual intercourse between a husband and his wife during the period of separation, as specified by Section 376B of the Indian Penal Code, 1860.

Thus, the lack of any law criminalising marital rape in India in its entirety reflects the state’s inability to recognise the interests of a wife who is a woman and, most importantly, a human being who deserves to live a respectful and healthy life. The Indian Constitution recognises different forms of human rights, such as the right to life and the right to privacy, but it fails to recognise that the right to life still implies the right to live a dignified life and that marital rape in India completely contradicts the basic principle underlying this fundamental right.

2. Violation of Article 14 and 21 of the Indian Constitution :

a) According to Article 14 of the Indian Constitution, “the State shall not deny to any individual’s equality before the law or humane treatment of laws within India’s jurisdiction.” Formal paraphrase Despite the fact that the Indian Constitution promises freedom to women, Indian criminal law discriminates against female victims of rape by their own husbands.

A married woman was not considered a separate legal body until the IPC was drafted in the 1860s. Rather, she was regarded as her husband’s chattel. As a result, she did not have many of the privileges that she now has as an individual legal body, such as the freedom to file a lawsuit against any person under her own name. Exception, which effectively exempts husbands’ conducting marital rape in India against their wives from being considered “rape,” is heavily conditioned and originated from the pre-existing doctrine of combining the woman’s position with that of her husband.

Husbands and wives now have distinct and independent legal identities under Indian rule, and most jurisprudence in the modern world is explicitly concerned with the rights of women. This concern is reflected in the slew of laws enacted since the turn of the century to shield women from abuse and discrimination, including “The Protection of Women from Domestic Violence Act” and the “Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act.”

Exception 2 contradicts Article 14’s right to liberty by discriminating against married women and refusing them equal treatment from abuse and sexual assault resulting in marital rape in India. The Exception divides women into two groups depending on their marital status and protects men from acts committed against their spouses. As a result, the Exception allows married women to be victimized for no cause other than their marital status thus defending single women from the same actions.

The differentiation between married and unmarried women in Exception 2 also breaches Article 14 insofar as the designation produced has a little reasonable relationship to the statute’s underlying intent. Exception 2, on the other hand, violates Section 375’s intention of protecting women and punishing those who commit the inhumane act of rape. Exempting husbands from penalty is completely contrary to that goal. Simply put, if a woman is married or single, the repercussions of rape are the same. Furthermore, since they are legally and financially bound to their husbands, married women may find it more difficult to flee oppressive situations at home. In fact, Exception 2 allows husbands to forcibly engage in sexual intercourse with their wives because they know their actions are neither prohibited nor penalised by the law.

The Act fails the lawfulness test and thereby violates Article 14 of the Indian Constitution since there is no reasonable link between the classification provided by the Exception and the Act’s specific meaning.

In Budhan Choudhary v. State of Bihar and State of West Bengal v. Anwar Ali Sarkar, the Supreme Court Judge Ruled that any classification made under Article 14 of the Indian Constitution is subject to a fair hearing and can only be allowed if it comprises a certain percentage of the intent of the act.

b) According to Article 21, “No individual shall be denied his life or personal liberty except in accordance with the process established by law.” In different decisions, the Supreme Court has understood this provision to go beyond the strictly literal promise of life and liberty. Instead, it has held that the privileges promulgated in Article 21 also define other things such as the right to life, privacy, equality, healthy working conditions, and a safe climate.

Courts have recently started to recognise a right to refrain from sexual contact and to be free of unwelcome sexual contact as a part of the universal rights to life and personal liberty. Sexual intercourse under coercion is a breach of human rights. The preceding rulings make no distinction between the rights of married and unmarried women, and there is no contradictory rule claiming that marital membership violates an individual’s right to privacy. As a result, the Supreme Court has recognised all women, regardless of marital status, as having the inherent right to abstain from sexual intercourse as civil freedom granted by Article 21 of the Constitution.

Article 21’s right to a healthy and dignified life is thus violated by Exception 2. As previously said, it is well established that the “freedom to live” proposed in Article 21 is more than just a right to live. For example, there should be no doubt that every Indian resident has the right to healthcare and that the state is obligated to provide for the welfare of its citizens. Formal paraphrase In this way, the courts have consistently ruled that the “quality to life” includes the right to live with dignity. However, the existence of Exception 2, which does not prohibit husbands from engaging in acts of coercive sexual contact with their wives which results in marital rape in India, has a detrimental effect on women’s physical and mental health, as well as their ability to live with dignity.

The foregoing results specifically show that Exception 2 to Section 375 of the IPC contradicts Constitutional Articles 14 and 21. It is beyond time for Indian law to recognise the inhumane nature of this law’s life and strike it down.

In K.S. Puttuswamy v. Union of India,

the Supreme Court recognised the right to privacy as a fundamental right of the people, ruling that privacy rights require “decisional privacy embodied by an ability to make personal decisions primarily consisting of one’s sexual or procreative nature and judgment in respect of intimate encounters.”

Marital Rape in India

3. Current Marital Rape in India Judgments / Case Law

a) In its recent decision on “Nimesh Bhai Bharatbhai Desai vs. the State of Gujarat,” the Gujarat High Court said, adding that husbands should be reminded that marriage does not grant them permission to physically rape their spouses. Marriage does not give a husband possession of his wife’s body, and she does not become an item of ownership in any way. She would not lose her human right of individual liberty over her own body by marrying, and she is thus perfectly within her rights to legally grant or withhold her consent to marital coitus at any time. Marital rape in India is a heinous crime that has utterly destroyed trust and belief in the sanctity of marriage in India.

A considerable number of women have borne the brunt of the practice’s decriminalisation and suffer in constant fear for their lives as a result. The Gujarat High Court ruled that the perpetrator should be charged for insulting his wife’s integrity, and that an investigation into this matter should be launched.

b) During the early days of defining “rights to privacy” as legal protection, the Supreme Court noted rape prosecutions that found sexual assault to be an unconstitutional breach of the right to privacy and sanctity, as well as an offence against a woman’s honour. Another case in point is the case of Suchita Srivastava, who sought approval for a surgical abortion. In this situation, the court ordered the state to completely respect the woman’s abortion rights. These rulings expressly demonstrate that the country’s supreme court derived this privilege solely from a woman’s right to anonymity, liberty, and physical integrity.

4. Remedies and Conclusion

Thus, for married women in India, the only remedy against non-consensual sex is legal protections Cruelty to a woman by a husband or a member of his family, as specified by the Protection of Women from Domestic Violence Act or Section 498-A of the IPC Several countries around the world have passed strict anti-marital rape legislation, rendering it a criminal offence. Countries such as Denmark, Sweden, Poland, Norway, and the Czech Republic have also criminalised marital rape in India, while some are not attempting to do so due to the complexities inherent with such a step, as well as the possible side effects for marital partnerships and the flipside of false charges.

Most supporters of current marital rape in Indian legislation argue that criminalising marital rape in India would give women an unfair advantage, potentially leading to a large number of false accusations being made against men. However, it cannot be ignored that India’s current rape statute, which exempts the husband, completely contradicts Articles 14 and 21 of the Indian Constitution. Marital rape in India is not just discriminatory, but it also violates a wife’s privilege to a decent life. No woman ever gives up her human rights when she marries. As a result, any statute that contradicts the clauses highlighted in the Constitution must be removed entirely.

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Article by – Sahil Madan Mate

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