Author : Sadiya Raffa, Intern At Student of the BAR. Student of SDM Law College, Mangalore.
Editor : Vidya Puthran, Student of the BAR.
Introduction :
Marital Rape is the act of sexual intercourse with one's spouse without the spouse's consent. The lack of consent is an essential element and need not involve physical violence. Marital Rape is considered as a form of domestic violence and sexual abuse.
Laws on Marital Rape:
India is one among the 36 countries which does not recognize marital rapes as rape.
It’s 21st century and Indian husbands can escape from penalization after raping their wives, thanks to the loophole in the Section 375 of Indian Penal Code.
Exception 2 of the section 375 which does not regard the non consensual sexual intercourse with wife, as an act of rape, if the wife is not below 15 years of age seems to be outdated and needs to be revised.
The roots of this exception dates back to the Victorian era when India was under colonial rule of British. Indian Laws which were drafted during that period were influenced by the patriarchal Victorian norms and English laws. British laws in the Victorian era did not treat men and women as equals. Women’s legal rights and obligations were merged with her husbands under the ‘Doctrine Of Coverture’ and which merged the identities of wives with their husbands.
Vague Reasons for not Criminalizing :
Though India has reformed several laws that were drafted during the Victorian era and has recognized husband & wife as separate and different legal entities, question arises as to why this exception is still in existence. Probably the main stumbling block comes from the union government and the judiciary.
Indian government, in an affidavit submitted to the High Court said that, "marital rapes could destabilize the institution of marriage and could be used as a tool to harass husbands." It further contended that, "those who were urging to criminalize marital rapes are blindly following western customs."
The Times Of India reported: “This country has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalizing marital rape.”
The other main argument is that criminalizing marital rape is against the culture of India. Former Chief Justice of India Dipak Misra stated that, "marital rape should never be made crime in India."
Deccan Herald reported, “I don’t think that marital rape should be regarded as an offence in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.”
Ground Reality :
All the arguments aside, one should look at the negative impact this exemption has on wives who are victims of marital rapes. Exception 2 to section 375 violates the right to equality guaranteed by Indian constitution under Article 14 which states, “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Exception 2 does not protect the Indian women who are raped by their husbands. The above mentioned exception also violates the Article 21 of the Indian Constitution which states, “No person shall be deprived of his life or personal liberty except according to procedure established by law”
Landmark Judgements:
The Supreme Court in various judgments has interpreted that, Article 21 includes right to health, privacy, dignity, safe environment and good living conditions.
In The State of Karnataka v. Krishnappa, the Supreme Court held that, sexual intercourse without consent will amount to physical and sexual violence and said, “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.”
Supreme court in the case Independent Thought v. Union of India has said that, "if divorce and judicial separation has not harmed the institution of marriage then criminalizing marital rape can not harm it either and further held that criminalizing marital rape is in any way not an threat to the institution of marriage."
Gujarat high court in the case Nimeshbhai Bharatbhai Desai v. State Of Gujarat held that, "marital rapes can break the trust and confidence in marriage and thus destroys the institution of marriage".
Conclusion:
The victims of marital rape must be protected by law. The central government and judiciary must prevent the infringement of constitutional rights and safeguard the rights of married women who are victims of marital rape. Practical measures should be taken to criminalize the marital rapes and the perpetrators who commit this heinous crime should be convicted.
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