MARITAL RAPE

Author-

Aditi Mishra, ICFAI Law School, Hyderabad.

Introduction

The ideal sacrosanct; the mirage of Indian marriage vented by the Indian mainstream media is contrary to the realities faced by a woman. Marital rape has been the most prevalent form of the assassination of the dignity of a woman; it's latent in the veils of the holy reunion of souls, marriage. It's often argued against Marital Rape that the husband gains unquestionable rights and her wife is to duly submit to him; this right cannot be retracted as it was gained by mutual consensus. This apparently robs a woman off her sexual agency and bodily integrity. Hence, it goes against the core ideologies of women's rights. The judiciary must be enforced to accept rape within a marriage as a crime. Women must break free from societal shackles and not comply to the stereotype of being the weaker gender.

It's high time that society’s view of "rape is that it only occurs at night to women in dark alleys by men they have never seen or met before" needs to change.

India is one of the thirty-six countries that haven't criminalized marital rape yet. The Supreme Court of India and various High Courts are presently flooded with writ petitions challenging the constitutionality of the Exception 2 to Section 375 of IPC that exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s definition of “rape”  and in a recent landmark judgment, the Supreme Court criminalized unwilling sexual contact with a wife between fifteen and eighteen years of age.[1] But this judgment led to a whole another set of writ petitions challenging Exception 2 in its entirety.

Violation of Article 21

Article 21 states that “[n]o person shall be denied of his life and personal liberty except according to the procedure established by law.” [2] In recent years, courts have set about to recognize a right to abstain from sexual intercourse and to be free of unwanted sexual activity embodied in these extensive rights to life and personal liberty.[3]

As it gives every person the dignity, the right of a woman to maintain her bodily integrity also comes under the purview of it. It could be efficiently destroyed as her husband effectively has all the control over her body and can subject her to sexual intercourse without her consent or without her willingness since such an act would not be considered as rape. This ends up a woman being viewed as a baby-making machine where her right to bodily autonomy and reproductive rights are out of the question and absurd.

It is crucial to acknowledge that reproductive options can be employed to procreate as well as to forebear from procreating. This view presented by J. Verma and that Marriage is in newer times is regarded as a partnership of equal and no more one in which the wife must be the subservient chattel of the husband.

Violation of Article 14

Article 14 of the Constitution 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".[4]

During the drafting of the IPC in 1860s, a woman was not considered as a legal entity. She did not possess as many rights as a man. Exception 2 further strengthens the Victorian Era establishment of patriarchy even though times have changed now. All Indian laws enacted at this time were deeply influenced by English laws and Victorian norms. Victorian patriarchal norms did not take into consideration men and women as equals, they did not authorize married women to own property, and converged the individualities of husband and wife under the “Doctrine of Coverture.” The modern era is extensively concerned about the protection of women.

A woman whether married or unmarried or divorced or separated or widowed has the inherent right to her sexual autonomy. The rationale of classification between a married and unmarried woman in has to become non-existent, therefore, making an exception to Section 375 is arbitrary, unreasonable and violative of the doctrine of equality. There exists no rational nexus for the classification rather it frustrates the purpose of Section 375: to protect women and punish those who engage in the inhumane activity of rape. It denies married women equal protection from rape and sexual harassment. It immunizes the husband's actions entirely from punishment crushing the objective of the law.

Social and Legal Paradox

According to the Parliamentarians that turned down the Marital Rape Bill, marriage is a sacred institution and touching it would result in it destabilizing. The correlation established by them on saving the institution of marriage and not criminalizing Marital Rape is bizarrely disturbing. This promotes the mainstream perception of married men to have the constant consent of their wives for their sexual satiation.

In a patriarchal society, a typical marital rapist believes that under any circumstance he can "rule" over his wife. This feeling extends to sexual matters, the man not only gains a few minutes of sexual satisfaction but he overpowers the wife emotionally and she submits to her.

Most marriages in India live because women quietly endure violence and abuse within their relationships. The culture of "obedience", "tolerance", "compromise" among women is propagated to save and respect the 'honor', the 'pride' and the 'values'. If she doesn't conform to these then she would be perceived as an anti-family warrior crumbling family bonds and creating a battlefield in the bedroom. Decades of social conditioning has rendered most women powerless but this changing with the advent of more and more women are coming up to the forefront for their rights.

Conclusion

Despite being one of the most atrocious crimes one can commit against a woman, Marital Rape has been neglected in the eyes of law. Additionally, the prior mentioned conclusions clearly represent that Exception 2 to Section 375 of the IPC is a transgression of Articles 14 and 21 of the Constitution. It is time that Indian jurisprudence understands the severe nature of this provision of law and repeals it.

Disclaimer

View Expressed are writers' work The topic discussed here is a brief of the subject matter and should not be substituted as proper legal advice. If a matter comes up under this topic then it is strictly advisable to consult a professional for advice and for the procedure and practice to be followed.

Footnotes

[1]Independent Thought v. Union of India, (2013) 382 SCC (2017) (India)

[2] India Const. art. 21.

[3] as “Right to abstain” from sexual intercourse is a long recognized principle of Indian Constitutional jurisprudence . Govind v. State of M.P, AIR (1975) SC 1378 (India); Kharak Singh v. State of U.P, (1963) AIR SC 1295 (India)

[4] India Const. art. 14.