Table of Contents
Introduction
Choosing a happy ending isn’t confined to fairy tales; it’s a decision we make in real life. Even though women make up over half of our society, still, they are still designed to be susceptible to different forms of discrimination and atrocities. Rape violates the fundamental rights protected by Article 14[1] of the Constitution as well as Article 21[2] of the Indian Constitution, making it not only a crime against women but also a crime against society as a whole. This conundrum of marital rape is based on the idea that a woman, who marries her husband, automatically gives her consent to engage in any sexual activity with him. The Indian Penal Code, 1860 has not criminalised marital rape yet unless the wife is under the age of 15 years, thus law being a broken promise of trust that fails its women every day.
In the 21st century, most of countries have criminalized marital rape, India being one of the countries out of the 36 countries that have not penalised this offence. Thus, it is the need of the hour to look at the legal provisions of India in the context of marital rape and suggest changes to make Indian society a better place to live for women. The article uses a review of various literature that is currently accessible and a review of pertinent decisions of the honourable courts of India.
Marital Rape under the Indian Penal Code: A Critical Examination
India, the largest democracy in the world, is one of the 36 nations that has not yet made marital rape a crime or recognised it as such. The countless studies, reports, and appeals have not resulted in any changes to the statute. The Indian Penal Code’s section 375[3] and section 376[4] provides for rape. When a man engages in sexual intercourse with his wife, Section 375 of the Indian Penal Code specifically states that it is “not a rape” if the woman is older than 15 years. Thus, in India, marital rape continues to be an undefined crime. Thus, India doesn’t have laws when comes to marital rape, thus, assassinating the dignity of women. The Delhi High Court gave a divided decision over the country’s criminalization of marital rape in May 2022. The current provisions were declared unconstitutional by Justice Rajiv Shakdher, who claimed that the right to revoke permission is essential to women’s rights to life and liberty. It is the right time to bring new laws and necessary amendments to bridge the gap and thus protect the married women of the country because ‘rape is rape’.
Demystifying ‘Consent’ in Marital Rape in India
The Essence of Consent in Marital Rape
The most intimate of relationships, shared between a woman and her husband, has to be governed by the principle of consent. From the initial decision to marry a man to the point where she consents to engage in sexual intercourse, unequivocal consent has to be a prerequisite at every stage. The pervasive influence of patriarchal dominance has led to an assumption that women would invariably grant their consent. The portrayal of leading ladies in Hindi cinema over the years has also looked at how a lady’s outright denial of consent is nevertheless seen as a green light for the man to keep trying to win her over. Marriage should never be misconstrued as a license to violate a person’s autonomy or to perpetrate sexual assault. No means no, and this fundamental principle should hold regardless of a woman’s marital status.
Assessing the violation of married women’s fundamental rights
An important issue that needs to be resolved in a society that values human rights, like India, is the claim that legalizing marital rape violates the fundamental rights that are guaranteed to every individual. Marital rape is a violation of the constitutional rights of women of the articles of the Indian Constitution. Exception 2 of Section 375 is a violation of Article 14[5], Article 15[6] and Article 21[7] of the Indian Constitution. Additionally, it distinguishes between married and unmarried women. The restrictions of Article 21 are broken by Section 375’s Exception 2. It violates the right to live in dignity, the right to privacy, the right to a healthy life, and the right to choose whether to have sex or engage in sexual activity. Due to exception 2’s existence, the law is unable to prevent husbands from engaging in coercive sexual behaviour.
The judiciary as well as the legislature have conveniently refrained from commenting on whether the exception provision is constitutional. Although no decision has specifically supported the legitimacy of the same, the court has occasionally disregarded such issues. In one such instance, the Gujarat High Court denounced marital rape as a “disgraceful violation” but declined to recognise the offence and make it a crime. The Hon. Supreme Court of India ruled in Independent Thought v. Union of India[8] that sexual interaction under the age of 18 with a wife, will fall within the definition of rape. A married woman was not regarded as an independent being when the IPC was drafted; rather, she was seen as her husband’s chattel. As a result, she does not have legal rights as a separate legal person.
Exemption 2 of Section 375’s core concept is the merging of the wife’s and husband’s identities. In one of the cases pending before the Hon’ble Supreme Court of India, it will be decided whether Section 376 of the IPC’s exception for marital rape violates the fundamental rights of married women. According to a survey conducted by an NGO named RTI Foundation, every third married woman in India has been raped. The law is silent despite this horrifying and astonishing fact.
Measures and remedies to address the issue of Marital Rape in India
Many petitions are filed in the High Courts as well as Supreme Court to criminalize the offence of marital rape. It is the need of the hour to take some important steps to mitigate the heinous crime of marital rape. Firstly exception 2 of section 375 should be deleted because it is a loophole in law that is harming the women of the country. Secondly, the relationship between the husband and wife should not be used as a defence in such cases. There is a need to increase awareness and try to change the mindset of the Indian society when it comes to marital rape. It is the time when the legislative and judiciary identify this offence, take stringent actions, and keep strict punishments so that people deter themselves from committing this heinous crime. It is time to stop this evil practice at any cost.
Conclusion
The resounding outcry against marital rape in contemporary India reverberates louder now than ever before. The findings presented here leave no room for doubt that Exception 2 to Section 375 of the Indian Penal Code violates the sacred principles enshrined in the Constitution. It is high time for Indian law to acknowledge the ruthless nature of this provision and obliterate it from our statutes. In light of this research, the unequivocal message emerges: rape is rape, irrespective of its within the confines of marriage. The institution of marriage can never be synonymous with perpetual consent. It is time to usher in a legal landscape that champions justice for all, within and outside the bonds of matrimony.
This article is authored by Ayushi A. Malik, a student at the Institute of Law Nirma University.
[1] INDIA CONST. art 14
[2] INDIA CONST. art 21
[3] Indian Penal Code, 1860 § 375.
[4] Indian Penal Code, 1860 § 376.
[5] supra note 1
[6] INDIA CONST. art 15
[7] supra note 2
[8] Thought v. Union of India, 10 SCC 800
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