“While the murderer destroys the physical frame of his victim, a rapist degrades and defiles the soul of a helpless female. When the victim is a mentally challenged person, there is not only physical violence and degradation and defilement of the soul, but also exploitation of her helplessness.”
-Justice Arijit Pasayat
We live in a patriarchal society where women are always treated lower to men. Violence has always been men’s weapon to show their superiority over women. Rape has been one of the most destructive forms of violence ever used. Even so, we are celebrating 73 years of independence from the clutches of British laws. But have this thought ever crossed your mind are we free? The answer is no, we haven’t. The conditions of women are still the same. Every year we celebrate independence day but women are still under the realm of darkness and fear. While on the one hand, we are celebrating the Supreme Court’s landmark judgments on triple talaq, transgender, Ayodhya judgement, abrogation of article 370 which is creating a new cornerstone for the judiciary. While on the other, we still treat women as chattel. They are still bound by Victorian law. India is still one of the thirty-sixth countries that allow marital rape.Although the Supreme Court and High Courts are still flooded with the petitions to criminalize marital rape. But there hasn’t been any law to criminalize the same. It is a shame that we live in the 21st century but still follow the early laws that treat man and women unequal.
In simpler terms, it means when a man forcefully has sexual intercourse with his wife without her consent.
We were ruled by Britishers for so many years, it was the Victorian law that beliefs that men and women are not equal and women cannot be treated as an independent entity but she is treated as an object. But after independence, we made many laws to treat women equal to men. We treated women as a separate independent legal entity. But we haven’t changed the law that was made by the Victorians.
Section 375 of Indian Penal Code
Section 375 echoes a very archaic sentiment, mentioned in the exception clause- “Sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape.”
According to section 375 of IPC Rape —A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: —
(First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(Fourthly) —With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(Fifthly) — With her consent, when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly) — With or without her consent, when she is under sixteen years of age.
Explanation—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception I—A medical procedure or intervention shall not constitute rape.
Exception 2—Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.
As mentioned above in exception 2, marital rape is not a rape in the eyes of law. It is disheartening to see that even the highest authority of law has still not criminalised it and even the Union Government is against the criminalization of the law by saying that it will break the institution of marriage.
Reasons behind that the law is still governed
Patriarchal Society- From childhood, we have been taught that boys are superior to the girls, that the girls should learn how to manage household and boys should support the family. Even though time has changed, but still men believe themselves more superior than women. It is one of the reasons that most of society still support the law.
Culture of marriage and family- There have been many beliefs that once a marriage has been solemnized there cannot be any divorce. They are husband and wife for at least seven lives. Although divorce is not forbidden its most likely to the belief that one has failed to fulfil their dharma. This is one of the traditional rituals that marriage is the building block of society. On the contrary, if a man is having sexual intercourse with their wife without her consent he has already devastated her trust and raped her, the irony is he is the one who must protect her and become a shield of the family.
Perpetual Consent of the Wife- It is believed by the society once a woman is married; she has given an everlasting perpetual consent to him to have sex with her. Indian has still dated back where Sir Mathew Hale of England in his book stated the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up to her husband, consent which she cannot retract”. Blackstone believes that man and woman become one person in the eyes of law. But the time has changed now, wherein a given judgement in 2017 Gujarat High Court stated– “It has long been time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.”
Myriads of religion beliefs- there are myriads of the belief that women are not equal to men. Men to show their machoism, rape their wives without their consent.
Violation in relation to Article 14 of the Indian Constitution
Article 14 states that- “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
This means that everyone is equal in the eyes of law and state will protect every person. Although the Indian Constitution guarantees equal protection in the eyes of law but Indian criminal law still discriminates women who are raped by their husband. When the IPC was enacted, it was believed that women don’t have a legal entity and they are considered chattel to their husband. Now women are treated as a separate legal entity and can file a case under her own identity. Although we have tried to change the plight of the women by enacting many statutes we are still holding exception 2 of section 375 if IPC to degrade women.
According to Section 375 of IPC- it has given two types of classification between married women and unmarried women.
- If she is raped by her husband and her age is above 15 years then it is not rape.
- If she is raped by any other men other than his husband irrespective of age, then it is defined as rape under Section 375 and the guilty person will be punished under section 376 of IPC.
This is not a reasonable classification under Article 14 of the Indian Constitution. As it has made a distinction between the married women and unmarried women. As the former are not allowed equal protection for rape and sexual harassment.
We live in 21st century, where we have a plethora of statutes to protect women from domestic violence, sexual harassments like “The Protection of Women from Domestic Violence Act” and the “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.”
The courts in many cases have pointed out there should be reasonable classification. In the case of State of West Bengal v. Anwar Ali Sarkar– the Supreme Court held that any classification under Article 14 of the Indian Constitution is subject to a reasonableness test that can be passed only if the classification has some rational nexus to the objective that the act seeks to achieve.
The aim of section 375 is to protect the women from rape, sexual harassment etc. Exception 2 of section 375 encourages the husband to have sexual intercourse with their wives without their consent. It is violative of Article 14 as the aim of classification should have rational nexus with the object not to destroy the very base of the object. Due to this unreasonable classification woman suffers a lot as it is harder for married women to escape from the responsibilities and she is financially and legally tied to her husband.
Madhu Limaye v. Supdritendent Tihar Jail Delhi–
There were Indian and European Prisoners. Both were treated differently. European gets better diet. Court held that difference between Indian and European prisoners in the matter of treatment and diet violates the right to equality under Article 14 of Indian prisoners. They all are prisoners they must treat equally.
As stated above, the classification between unmarried and married women is also arbitrary and violative and must be treated equally.
Saurabh Chaudhari v Union Of India–
Held- (i)The classification must be founded on intelligible differentia, distinguishing grouped persons or goods from the left out ones of the group.
(ii)The differential must be in a rational relation with the sought object that is to be achieved by the act. The object of the act and differential based on classification are two separate things. It is essential that there must be the presence of nexus between the object of the act and the basis of classification. When a reasonable basis is not present for classification then such classification made by the legislature must be declared discriminatory.
From the above cases, we can conclude that the classification between married and unmarried women is unreasonable and it opposes the basic objective of section 375. So the court should strike down the exception two given under section 375.
Violation in relation to Article 21 of the Indian Constitution
Article 21 states that “No person shall be denied of his life and personal liberty except according to the procedure established by law.” The Supreme Court many times have broadly interpreted the term ‘life’. It doesn’t mean mere existence but the right to life include- the right to sleep, live with dignity, health, safe environment etc.
In the case of Francis Corallie Muin v. Union Territory of Delhi–
The concept of a right to life under Article 21 of the Constitution was highlighted. According to this case, Article 21 includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings.
Exception 2 of section 375 is violative of Article 21 as raping a woman is against her dignity and how can law accept exception which allows man to rape their wives and degrading their dignity by damaging them mentally and physically.
CASES WHERE COURTS TOOK STAND AGAINST MARITAL RAPE
The Chairman, Railway Board v. Chandrima Das–
The Supreme Court has observed that rape is not merely an offence under the Indian Penal Code, but is a crime against the society as a whole.
Bodhisattwa Gautam v. Subhra Chakraborty–
Court held that rape is to a lesser degree a sexual offence than a demonstration of hostility gone for corrupting and mortifying the ladies. In this manner, the marital exception principle is violative of a spouse’s entitlement to live with human dignity. Any law which damages ladies’ entitlement to live with dignity and gives spouse appropriate to drive the wife to have sexual intercourse without her will is along these lines unlawful.
Kharak Singh vs State of Uttar Pradesh -
In this case, question aroused whether the right to privacy is a part of the right to life? The court answered in affirmative. Dissenting judge Subbarao said that even though the right to privacy was not expressly recognized as a fundamental right, it was an essential ingredient of personal liberty under Article 21.
State of Maharashtra v. Madhkar Narayan-
The Right of Privacy under Article 21 of the Constitution of India also states that every person has the right to Sexual Privacy. If any type of intense sex damages the right of protection, sexual integrity and security than it is violative of Right to Sexual privacy under article 21.
Vishakha v. State of Rajasthan-
The Supreme Court extended this right of privacy to workplaces as well. It can be interpreted on the same lines that the right to sexual privacy is also a part of ‘right to life’ and consent of the married before should be necessary before having intercourse.
State of Karnataka v. Krishnappa-
The Supreme Court held that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.”
Suchita Srivastava v. Chandigarh Administration-
The Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.
Recent Development of Law against Marital Rape-
Justice K.S. Puttuswamy (Retd.) v. Union of India-
The Supreme Court recognized the right to privacy as a fundamental right of all citizens and held that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.
Independent Though v. Union of India-
The Court specifically explained that marriage is personal and nothing short of the Indian State criminalizing marriage itself can destroy the institution of marriage. It said if divorce and judicial separation have not destroyed the institution of marriage, criminalizing marital rape certainly cannot either.
The case was regarding the age of the consent. According to Section 375, the age to give consent to sexual intercourse is 18 years and anyone who has sexual intercourse with her below the 18 years of age is said to have raped her. But according to exception 2, the husband can have non-consensual sex with a girl between 15-18 years of age and is not rape. The provision is contradictory to Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), which states that aggravated penetrative sexual assault as defined in Sec. 5(n) by a relative of the child is punishable by rigorous imprisonment of 10 years to life plus a fine.
The Court in this case correctly observed that Exception 2 to Section 375 is arbitrary and violative of child rights and Articles 14, 15 and 21 of the Constitution as well as the POCSO Act. The Court held that it should be read as “Sexual intercourse or sexual acts by a man with his wife, the wife not being under 18 years of age, is not rape.”
Nimeshbhai Bharatbhai Desai vs State of Gujarat–
Held- that the non-consensual act of marital rape violates the trust and confidence within a marriage and that marital rape is what has damaged the institution of marriage.
Joseph Shine vs Union of India--
Unanimously striking down provisions of adultery under the Indian Penal Code (IPC), the Supreme Court said Thursday that “curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to Constitutional values.”
Without directly delving into the issue of marital rape, Justice D Y Chandrachud observed that “any legislation which results in the denial” of Constitutional guarantees to women “cannot pass the test of constitutionality”.
A case was filed in the Delhi High Court by the NGO regarding the criminalization of marital rape. The Delhi High Court. “Marriage does not mean that the woman is all time ready, willing and consenting for sex. The man will have to prove that she was a consenting party.” It is that simple.
In this judgment justice, Indu Malhotra noted in her judgment that “any legislation which treats similarly situated persons unequally, or discriminates between persons based on sex alone, is liable to be struck down as being violative of Articles 14 (equality) and 15 (prohibition of discrimination) of the Constitution, which form the pillars against the vice of arbitrariness and discrimination.”
From the above cases, we can conclude that allowing marital rape is violative of Article 14 and 21 of the Indian Constitution and POSCO Act,2012 (it include marital rape is a kind of local violence).
In the era of reforms and landmark judgments it is our utmost duty to criminalize marital rape then only it can be said that we are truly reforming and transforming in real sense. Marital rape is the worst kind of violence occurring in any family and its worth the government’s and court’s attention. On one hand, we are enacting plethora of statutes and talking about marital rape and on the other hand we are still giving the husband the right to rape her wife. We are giving females to have right to speech and expression and other rights but we are not giving her right towards her body after marriage. Indian laws relating to marital rape are still paradoxical. There are many lacunae in the Protection of Women from Domestic Violence Act, as the Act does not openly speak against marital rape. The New Criminal Amendment Law, 2019 does not make clear about the age given in exception 2 of section 375. We are in urgent need to make law or act regarding marital rape as we are still confused. On the brighter side, we can see the courts are talking about this issue as a public cause and not abandoning it to be a personal family matter.
End Notes- Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016. Aishwarya Mishra, Law On Marital Rape – A Much Needed Reform in Our Legal System, (April 13, 2018), https://www.mondaq.com/india/crime/691482/law-on-marital-rape-a-much-needed-reform-in-our-legal-system  Hale, Sir Matthew (1736). The History of the Pleas of the Crown: In Two Volumes, Volume 1 (reprint ed.). Payne. p. 628.  Nimeshbhai Bharatbhai Desai vs State of Gujarat, R/CR.MA/26957/2017. Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India); Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, No. 14, Acts of Parliament, 2013 (India).  1952 SCR 284.  1975 AIR 1505.  AIR 2004 SC 2212.  1981 AIR 746  (2000) 2 SCC 465  1996 AIR 922  1963 AIR 1295  AIR 1991 SC 207  AIR 1997 SC 3011  2000 Cri. LJ 1793  (2009) 14 SCR 989  (2017) 10 SCC 1  (2017) 10 SCC 800  Maithili Shaan Katari Libby, Marital Rape: It’s all about respect, https://www.indialegallive.com/viewpoint/marital-rape-its-all-about-respect-74354.  Ibid.  2018 SCC Online Guj 732,  65.  2018 SC 1676 Sowmiya Ashok, Supreme Court signal on marital rape: Consent, sexual autonomy in marriage are key values (September 28, 2018, 12:46:40 pm), https://indianexpress.com/article/india/supreme-court-signal-on-marital-rape-consent-sexual-autonomy-in-marriage-are-key-values-5377501/  Urvija Banerji, Delhi HC on Marital Rape: “A Rape Is a Rape” (July 18, 2018), https://theswaddle.com/delhi-high-court-on-marital-rape-a-rape-is-a-rape/.
Author: Riddhi daga,
Hidayatullah National Law University, 3rd year student