Marital Rape- A legal Crime

We are living in the 21st century but still male patriarchy prevails over dignity and self- respect of the woman. This could be seen in the exception (2) of section 375 of the Indian penal code which talks about the validity of marital rape.Violence against women has now become part of daily routine life. Marital Rape is also known as Spousal Rape. It is a heart wrenching act wherein one spouse make sexual intercourse with other spouse without spouse’s valid consent.

Women are more prone to marital rape. Sex is a two way process so consent should also be mutual. Rape is Rape no matter whether it is a rape or marital rape. Women are supposed to remain silent no matter how much mental, physical and emotional pain she is suffering. When two people marry each other, they are supposed to take care of each other and live with each other for the rest of their life with complete trust. It is so traumatic that they break this trust for pleasure for just 2 minutes. Marriage is a pure relation and not a license to Rape. Women are asked to keep their men happy the day they get married to make sure that he doesn’t opt for outside sexual pleasure and if still men get into extra marital affairs,society try to justify their act by blaming their wives for not taking proper care of their husbands. Why are only women asked to keep their man happy when marriage is a mutual act? Marriage being a sacred social institution doesn’t give right to rape and if it give such rights, how can it be said sacred?

According to section 375 of the Indian penal code, when any man engage in sexual intercourse with any woman without her consent is said to commit Rape. This section further laid down two exceptions where first exception is related to medical procedure or intervention and second exception talks about sexual intercourse by a man with his own legally wedded wife, wherein wife not being under the age of fifteen years is not rape.

Problem lies in exception (2) of section 375. These are some instances when husband can be prosecuted for marital rape-
1.When age of the wife is between 12-15 years and husband commit marital rape with her, this offence is punishable with imprisonment of the term of 2 years or fine or both.
2.When age of the wife is below 12 years and husband get into sexual intercourse with her without her valid consent, he would be held liable for the imprisonment which shall not be less than 7 years and which may extend to life or up to 10 years and shall also be liable for the fine.
3. If a man get into sexual intercourse with judicially seprated wife without her consent, offence would be punishable with imprisonment of 2 years and shall also be liable to fine.

Recommendation of removal of exception (2) of section 375 of the Indian penal code was given by the Justice Verma Committee in 2013. It is saddening to say that India is among those group of countries that still have not criminalized marital rape. On a brighter side, the supreme court and some high courts of india are working on writ petitions filed challenging the legality of marital rape.

Basic structure of Indian Constitution guarantees all its citizens some fundamental rights irrespective of their caste, religion, sex, race, place of birth etc. Exception (2) under Article 375 of the Indian penal code is violative of two fundamental rights given by Indian constitution i.e Article 14 and Article 21. Article 14 of the constitution provides for equality before law and equal protection of law within the territory of India. Exception (2) of section 375 discriminates between married and unmarried women which violate her right to equality under article 14. This law also discriminates between women below the age of 15 years and above the age of 15 years. Exceptions under this Article deprive woman of different age and marital status equal rights. Article 21 of the Indian Constitution guarantees protection of life and personal liberty. Rape is not only crime against human body but also against one’s dignity. Marriage doesn’t mean that a woman loses her human dignity, Right to privacy and right over her own body. She possesses every right to make her intimate decisions irrespective of her marital status. Women have every right to live with dignity and respect. In these ways, exception (2) of section 375 is violative of basic fundamental rights of the constitution.

Rajiv Shakder and C Hari Shankar is working on four petitions challenging the constitutional validity of exception (2) of section 375 of the Indian penal code which deals with Rape. Petitioner side being All India Democratic Women’s Association, court will also take into consideration statements given by amicus curiae Raajshekhar Rao and Rebecca John, Senior advocates.

Immunity given in exception (2) was held in the constitution before independence. This was premised based on two assumptions-
CONSENT IN PERPETUITY- Consent in perpetuity means it is assumed that women gives their free consent for sexual intercourse the moment she get married. The consent given is perpetual consent i.e. it cannot be reverted back. This doctrine is based on the post colonial period where women were considered as an object and property of a man. Husband was considered as the master of his wife, including her body.

SEXUAL INTERCOURSE– This is a presumed assumption that woman is required to keep her husband happy . she is obligated to fulfil his sexual desires as a part of her marital obligations. When two people marry each other, they are required to cohabit together for the rest of their lives. As an obvious expectation of sexual intercourse by a man with his lawfully wedded wide, exception (2) implies that woman cannot deny to sex making marital rape legal. Marital rape can be challenged because of a slew of SC ruling-
-In 2017, the Supreme Court struck down the rule of triple talaq as unconstitutional as Triple talaq was not sanctioned by the Quran and therefore it cannot form part of the basic fundamental rights of a religion.
-In 2017, Aadhar card policy was struck down because it was violative of Right to privacy.
-In 2018, section 377 was declared unconstitutional as it used to criminalise homosexuality.
Similarly there are endless number of cases where biasness of Supreme court can be seen with respect to laws of marital rape. Exception (2) of section 375 of Indian penal code stands against Article 14 and Article 21 of the Constitution as it violates right to equality by discriminating between married and unmarried woman and also woman above and below the age of 15 years and it is violative of right to life and personal liberty because it snatches away woman’s right to valid consent for sexual intercourse respectively.

Men ( and some women ) have been tweeting with the hashtags #MarriageStrike and #MaritalStrike as the Delhi High Court debates marital rape. In India, a Twitter protest organized by “men’s rights activists” to oppose the criminalization of marital rape is weeding out rape apologists. In response to court hearings this month on a lawsuit attempting to remove the marital rape exception from Indian criminal law, men (and some women) have been tweeting with the hash tags #MarriageStrike or #MaritalStrike. In recent years, India’s sexual assault laws have been reformed, but married women are still not protected from being coerced into sex by their spouses. Proponents of the hashtag protest argue that changing India’s rape laws will expose men to false criminal prosecutions, making marriage risky in the first place.
Concluding this Article, Several countries across the globe have already taken initiative to criminalize marital rape. All of them have very strict laws for the same. India is one among those countries who have not yet taken any steps for the increasing cases of marital rape. We are living in an age of science, technology and advancement where Women earn on their own and live independently. Based on the ancient thinking that women are the property of the men and men have every right to do whatever he want with his wife, our judicial system have not yet criminalize marital rape. This needs to be taken care of at the earliest. There is an urgent need to criminalize marital rape no matter how much amount of valid argumentations are received because exception (2) of section 375 of the Indian penal code is violative of basic fundamental rights of the women.

1.Prof. S.N Misra, The Indian penal code, Central law publications, 20th edition, reprint 2017
2.Indian penal code Bare Act
3.Constitution Bare Act
8.The Indian express Newspaper

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