By
Priya, III year of B.Com.,LL.B, from University Institute of Legal Studies, Panjab University, Chandigarh.
Khushi Chopra, II Year of B.Com.,LL.B, from University Institute of Legal Studies, Panjab University, Chandigarh.
Introduction
Rape has been identified under Section 375 of IPC, which provides that a man commits rape when he performs sexual intercourse with a woman ‘against her will’ or ‘without her consent’. Even the slightest penetration of the penis of a man into the vagina of a woman constitutes rape. Understanding the various types of rapes is important here, and these are stranger rape, acquaintance rape, marital rape, war rape, rape during riots, etc.
This paper deals with whether Section 375 of IPC has marital rape in its definition or not. Marital rape can be understood as undesirable sexual intercourse by a husband with his wife. It is a non-consensual act by a husband where he is responsible for physical and sexual abuse.
Marital Rape in India
The definition of Rape in Section 375 includes all forms of sexual assault. It also includes non-consensual intercourse with a woman. But Exception 2 to Section 375 exempts a husband from liability of unwilling sexual intercourse if she is over 15 years of age. This immunizes such heinous acts from prosecution.
There are other instances where the husband can be liable for an offence of rape. In case the wife is between 12-15 years of age, the husband can be prosecuted for two years or a fine or both, and in the case where the wife is below 12 years of age, he can be prosecuted either description for a term which shall not be less than 7 years, extendable to 10 years with a fine. Therefore, it is pointed out that rape is not punishable in the case where the wife is above 15 years of age.
Violation of fundamental rights of the victim
Exception 2 to Section 375 is violative of Article 14 and Article 21 of the Constitution.
“Article 14 which guarantees ‘equality before the law’ and ‘equal protection of the laws' is under threat due to special privilege conferred to males to perform sexual intercourse with the wife without her consent. Most importantly, the classification between the rape of an unmarried woman and a married woman is not based on an intelligible differentia. Hence, this exception deprived the married women of the ambit of equal protection of laws.
Article 21 provides the right to live with human dignity. The offense of rape abuses the essential facet of this right. Exception 2 of Section 375 violates the right to personal liberty, dignity, privacy, and autonomy of a woman because her husband can commit sexual intercourse with her at any point in time, irrespective of her choice. Moreover, the husband can also use force for this purpose, but he is immune to the punishment of rape.
In BodhisattwaGautam v. Subhra Chakraborty,[1] the Court held the rape is such a heinous crime that deprives a victim of the right to life enshrined in Article 21. The Supreme Court in the landmark case of The Chairman, Railway Board v. Chandrima Das[2], held that rape is a crime, not only against women but against the whole society. It abuses the most cherished right of the victim, which includes the right to live with human dignity under Article 21.
In the case of State of Maharashtra v. Madhkar Narayan[3], the Supreme Court held that every woman is entitled to have her sexual privacy, and no one is allowed to violate it. The Hon’ble Gujarat High Court in the case of Nimeshbhai Desai v. State of Gujarat[4] has remarked that Exception 2 of Section 375 of the IPC is unconstitutional. However, the Hon’ble Court has left it to the discretion of the Legislature to repeal such an exception. Hence, it is pivotal to set aside this exception to safeguard the rights of married women.
Justice Verma Committee Report (2013) recommended the removal of the exception of marital rape from IPC. Fortunately, in November 2017, the Honorable Supreme Court in the case of Independent Thought v. Union of India[5] read that Exception 2 to Section 375, IPC as being violative of Article 14 and 21 of the Indian Constitution.
Also, in the 42nd Report by the Law Commission of India, it was recommended adding criminal liability must be attached to non-consensual intercourse of a man with his minor wife. Later on, it was rejected on the ground that sex is part and parcel of marriage. So, the husband cannot be held guilty of raping his wife. Does this issue need to be addressed as to how the can law can ignore such a violation of others' rights?
Criminalization of Marital Rape
Argument against
Due to the impossibility of proving such rape, its criminalization would be a burden on Indian Courts.
Many fake cases in the names of marital rape can be filed by vengeful wives.
Most importantly, it is driven by the prestigious institution of marriage that there is an implied consent to have sexual intercourse. Such criminalization could only destroy marriages by preventing any possible reconciliation.
Arguments For
An NGO found in the basic study conducted by Joint Women Programme that out of every seven married women, one had been raped at least once by their husband, and they don’t report it because the law doesn’t support them.
The criminalization of Marital rape will have a deterrent effect on the repute husband.
If claiming marital rape is hard, then proving fabricated rape will be harder.
The prestigious institution of marriage automatically gets destroyed when the husband rapes his wife. Therefore, it will be better to criminalize marital rape.
Suggestions
Marital Rape should be criminalized under IPC.
The punishment should be the same as provided under Section 376 of IPC.
Marriage should be taken for granted for married women.
Married women are provided with an option of filing for divorce on the ground of marital rape.
Matrimonial laws in India should be changed accordingly.
Conclusion
Rape is a catastrophe for both society and the victim. The elimination of rapes is important for the eradication of sexual violence against women. To achieve this aim, it is prima facie necessary to penalize marital rape in India. This step will ensure the protection of women at their home from the husband. This will set a lesson for the whole society that rape is rape; even the husband will not be exempted from the punishment.
End Notes
[1] AIR 1996 SC 922
[2]MANU/SC/0046/2000
[3]AIR 1991 SC 207
[4]2018 SCC ONLINE GUJ 732
[5](2017) 10 SCC 800