Rape is a vital term that has more than just a meaning attached to it. We have a lot of laws and regulations in place to safeguard the rights of rape victims, but isn’t it interesting that while rape is considered a fatal crime by society and the law, marital rapes are not?
This is a long-standing problem that has to be addressed right away. Civilization has progressed to a degree over time, and many essential changes have been made for the welfare of society. Many governments have not only recognised this crime, but have also taken steps to avoid it in the future and to defend the rights of all victims.
Domestic violence in India is a long-standing issue that, according to experts, has only gotten worse in recent years. Around 70% of Indian women are victims of domestic abuse, according to the National Crime Records Bureau’s (NCRB) annual report, “Crime in India.”
Rape in the home is one of the symptoms of domestic abuse. Marital rape, which is the act of coercing your partner into having sexual contact with you without their permission, is a popular means of demeaning and disempowering women.
Despite several criminal law amendments aimed at protecting women, the non-criminalization of spousal rape in India continues to jeopardise the dignity and rights of women in the country.
All forms of sexual assault involving non-consensual contact with a woman are covered by the definition of rape in Section 375 of the Indian Penal Code (“IPC”). On the other hand, Section 375 Exception 2 exempts hesitant sexual intercourse between a husband and a wife over the age of fifteen from the definition of “rape,” essentially shielding such actions from prosecution. After they have had marital intercourse, a wife is regarded to provide her husband eternal consent to have sex with her. While practically every country in the world considers unwanted sexual contact between husband and wife to be a crime, India is one of 36 countries that has yet to prosecute marital rape. The Supreme Court of India and other High Courts received a deluge of writ petitions contesting the legitimacy of this rule, and the Supreme Court recently criminalised unwelcome sexual contact with a wife between the ages of fifteen and eighteen in a landmark decision. As a result of this decision, several writs challenging the constitutionality of Exception 2 as a whole have been submitted.
Violation of Article 14
“The State shall not refuse to any individual within the territory of India equality before the law or equal protection of the laws,” says Article 14 of the Indian Constitution. Women who have been raped by their own husbands experience discrimination in Indian criminal law, notwithstanding the Indian Constitution’s guarantee of equality for all.
When the IPC was founded in the 1860s, a married woman was not considered an independent legal entity. Rather of being her own property, she was seen as her husband’s. As a result, she lost a lot of the privileges that come with being a separate legal entity, like being able to file a lawsuit in her own name against someone else. The already-existing doctrine of integrating the woman’s identity with her husband is substantially inspired by and derived from Exception 2, which effectively exempts husbands’ conduct against their wives from being labelled “rape.”
The origins of this philosophy can be traced back to Victorian-era British colonial rule. India was a British colony during the nineteenth century. All Indian laws were strongly influenced by English laws and Victorian conventions during this time period. The “Doctrine of Coverture,” which denied men and women equality, prevented married women from possessing property, and blended husband and wife identities, led to the development of the marital exception to the IPC’s definition of rape.
The times, however, have changed. Under Indian law, husbands and wives now have separate and independent legal identities, and much modern jurisprudence is devoted to women’s protection. This concern is reflected in the several statutes passed to protect women from violence and harassment since the turn of the century, such as “The Protection of Women from Domestic Violence Act” and “Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act.”
In so far, as it discriminates against married women by denying them equal protection from rape and sexual harassment, Exception 2 violates Article 14’s right to equality. The Exception splits women into two groups based on their marital status, and it prevents men from committing crimes against their wives. As a result of the Exception, married women can be victimised solely because of their marital status, but unmarried women are protected.
Exception 2’s distinction between married and unmarried women likewise violates Article 14 since the categorization created bears no reasonable relevance to the statute’s underlying goal. In Budhan Choudhary v. State of Bihar and State of West Bengal v. Anwar Ali Sarkar, the Supreme Court held that any classification made under Article 14 of the Indian Constitution must pass a reasonableness test, which can be passed only if the classification has a rational connection to the act’s goal. Exception 2, on the other hand, undermines Section 375’s goal of protecting women and punishing those who commit rape. It is totally opposite to that purpose to exempt husbands from penalties.
Married women may also find it more difficult to avoid dangerous conditions at home since they are legally and financially linked to their spouses. In reality, Exception 2 encourages husbands to force sexual contact with their wives because they know their conduct will not be prosecuted. Because no rational relationship can be established between the classification it creates and the Act’s underlying aim, the Exception violates the reasonableness test, thus breaching Article 14 of the Constitution.
Articles 14 of the Constitution are obviously violated by Exception 2 to Section 375 of the IPC, as evidenced by the aforementioned conclusions. It is past time for Indian law to recognise the brutal nature of this provision and strike it down.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at email@example.com
We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.
We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge