In India, consent to have sex with a woman who is his wife has been granted unconditionally by Exception 2 of Section 375 of the Indian Penal Code (IPC). Thus, a ‘no’ from a wife, is void of any meaning, in the eyes of her husband as well as the law. This Section, which criminalizes sexual intercourse with a non-consenting woman, differentiates between a ‘woman’ and a ‘wife’. A rapist man can be convicted for rape of a woman, but not his own wife (unless she is under 18 years of age). The question is, does marriage imply continuous consent to have sexual intercourse? By marrying, does she divest herself of the human right to an exclusive autonomy over her own body? The IPC, drafted in 1860s, over 150 years ago, was based on Victorian patriarchal norms, which merged the identities of husband and wife under the “Doctrine of Covertures”. Back then, married women were considered as chattels or properties of their husbands instead of independent legal entities. However, as we moved forward, past norms were questioned, reforms were brought in, and humans continuously evolved. In India, theoretically, women are no longer considered the property of men, they enjoy equal status in law, and as articles today quote, ‘they are giving a tough competition to men’. But the real evaluation is her position in the society and family. When a married woman does not have the right to her bodily autonomy, we are forced to ask ourselves, ARE WOMEN TRULY EQUAL? Rape is rape, irrespective of marital status and age, a ‘no’ must mean the same thing. When one views this distinction between married and unmarried women, through the lenses of Article 14 of the Indian Constitution, which guarantees ‘Equality before law’ , this discrimination seems to have no rational nexus to the underlying purpose of the statute. In fact, exempting a class of men from punishment goes against the main objective, which is to grant every woman the basic right of body autonomy. The ramifications of rape remain the same, mindless of a woman’s marital status. Thus, it miserably fails the test of reasonableness, an essential element of Article 14, constituting a gross violation. Though marriage is very personal, it is not free from the umbrella of law. The existence of cruelty, domestic violence, dowry deaths is a testament to the fact that marriages are not free of crimes. A physical relation in a marriage is an important factor recognized by law. In the case of Dhanus Nair v. State of Kerala,8 it was held that a husband aggrieved by his wife’s unremitting refusal to engage in sexual intercourse could seek redressal before the Family Court on the ground that it constitutes psychological incapacity. It was further said that coercion and force to make her yield should constitute a felon. It went on to hold that, “husbands need to be reminded that marriage is not a license to forcibly rape their wives. A husband does not own his wife’s body by reason of marriage”. Article 21, the right to life and personal liberty includes the right to dignity and privacy as a fundamental right. The Supreme Court of India, in the case of Suchita Srivastava v. Chandigarh Administration, held that the right to make choices related to sexual activity comes under the purview of Article 21. Furthermore, in its landmark Privacy Judgment, Justice KS Puttaswamy v. Union of India, it was held that the right to privacy is a fundamental right which 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”. Forced sexual cohabitation is considered to be a breach of that fundamental right.The Apex Court itself recognizes the grave nature of sexual offences and its inconsistency with the fundamental rights. When speaking of non-consensual activity, often the words ‘any’ are recorded. Thus, the right to abstain from sexual activity for all women, regardless of the matrimonial status, as a fundamental right provided under Article 21 of the Constitution, must be protected. The institution of marriage, a sacred union under Hindu law, some argue that criminalising marital rape is against the Indian culture. It is believed that Indian family values, religious beliefs, combined with staggering illiteracy and poverty make the socio-economic scenario in India such that the concept of criminalizing marital rape is ‘western’ and unfit for our country. The government, as well as the Judiciary, acknowledges the fact that lakhs of wives’ sexual consent is violated daily, because of the misconceptions engraved in the minds of men. Their sense of entitlement, patriarchy and ownership over the wife has been nurtured by such draconian laws over the years. Therefore, only to prevent millions of marriages from falling apart, to stop wives from speaking up against their husbands, who are their rapists, this exception gives men the right to violate a woman’s dignity. In the 21st century, when India has the vision to move forward, such colonial laws must be abrogated. The nature of the crime is such that, convicting a man for marital rape ‘beyond reasonable doubt’ will not be easy. However, India has the privilege of evaluating the legal framework of many counties who have criminalised this and take the best-suited parts to formulate a new provision. Nevertheless, the first step will be to delete this grossly unconstitutional provision. In most cases, the only piece of evidence will be the testimony of the wife. Due to the lack of evidence, thirty-three states of US have some qualifications regarding the amount of force required to prove marital rape. Albeit force may not always exist, the Court must look for other evidence to corroborate the testimony. In addition to this, the recommendations of the J.S Verma Report, must be kept in mind, which said that “consent cannot be presumed because of the existence of marriage. Expert testimonies of doctors examining the mental and psychological state of the victim and accused will play a big role.” One of the 36 countries who have not criminalized marital rape, India must finally stop treating women as ‘chattel’ and ‘property’. Patriarchy is a mindset which needs to be actively changed. When she is robbed of the right over her own body, she is no longer free, equal or human in the real sense. It is high time that this ‘license’ given to husbands, which allows them to exploit their wives in the form of Exception 2 of Section 375, must be revoked.
Author: jageshwar pateriya,
jagran lakecity university/student