Why is Marital Rape still not a crime in India?
While almost every country in the world considers unwanted sexual contact between a husband and a wife to be a crime, India is one of thirty-six countries that has yet to prosecute marital rape. It is a socially accepted norm that after engaging in a marital relationship, a wife gives her husband perpetual permission to have sexual relations with her. This makes it critical to implement changes in marital laws around the world in order to establish equality and maintain order of justice, particularly in a "Nation of Goddesses" like India.
The Indian Penal Code and Marital Rape
The definition of rape established in Section 375 of the Ind Penal Code includes all types of sexual abuse, including non-consensual contact with a woman ("IPC"). Exception 2 to Section 375, on the other hand, exempts reluctant sexual intercourse between a husband and a wife over the age of fifteen from the definition of "rape" under Section 375, and thus protects such actions from prosecution in the future.
The Supreme Court of India and several High Courts are being deluged with writ petitions challenging the constitutionality of this provision, and the Supreme Court recently criminalised unwanted sexual contact with a wife between the ages of fifteen and eighteen in the landmark decision of Independent Thought vs. UOI. However, marital rape has not yet been criminalised for wives over the age of eighteen. As a result of this decision, other writs were filed in the Apex Court, challenging the validity of Exception 2 in its entirety.
When the IPC was drafted in the 1860s, a married woman was not considered a separate legal entity. Rather, she was regarded as her husband's property. As a result, women lacked many of the rights that come with being a separate legal entity, such as the ability to sue someone else in her own name. Exception 2 to Section 375, which essentially exempts husbands' activities against their wives from being considered acts of "rape," is heavily inspired and drawn from the already existing doctrine of blending the woman's identity with that of her husband.
This philosophy can be traced back to Victorian-era British colonial rule. India was a British colony during the nineteenth century. All Indian laws were heavily influenced by English laws and Victorian customs during this time period. The IPC's marital exclusion from the definition of rape arose in response to Victorian patriarchal standards that denied men and women equality, barred married women from owning property, and blended husband and wife identities under the "Doctrine of Coverture."
The world, however, has changed. Under Indian law, husbands and wives now have distinct and separate legal personalities, and much current jurisprudence is particularly concerned with women's safety. This concern is reflected in the slew of statutes enacted since the turn of the century to protect women from violence and harassment, including "The Protection of Women from Domestic Violence Act" and "Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act (POSH)."
Exception 2 violates Article 14 and the right to equality enshrined in it because it discriminates against married women by denying them equal protection from rape and sexual harassment. The Exception categorises women into two groups based on their marital status and prohibits males from committing crimes against their spouses. As a result, the Exception allows married women to be victimised solely on the basis of their marital status, while unmarried women are protected from the same offences.
The distinction made in Exception 2 between married and unmarried women also violates Article 14 because the categorization produced bears no reasonable relationship to the statute's underlying goal. In Budhan Choudhary v. State of Bihar, the Supreme Court held that any classification made under Article 14 of the Indian Constitution is subject to the test of reasonableness, which can only be carried out if the categorization has a rational connection to the goal of the act.
The Supreme Court of India and several High Courts are being deluged with writ petitions challenging the constitutionality of this provision, and the Supreme Court recently criminalised unwanted sexual contact with a wife between the ages of fifteen and eighteen in the landmark decision of Independent Thought vs. UOI. However, marital rape has not yet been criminalised for wives over the age of eighteen. As a result of this decision, other writs were filed in the Apex Court, challenging the validity of Exception 2 in its entirety.
When the IPC was drafted in the 1860s, a married woman was not considered a separate legal entity. Rather, she was regarded as her husband's property. As a result, women lacked many of the rights that come with being a separate legal entity, such as the ability to sue someone else in her own name. Exception 2 to Section 375, which essentially exempts husbands' activities against their wives from being considered acts of "rape," is heavily inspired and drawn from the already existing doctrine of blending the woman's identity with that of her husband.
This philosophy can be traced back to Victorian-era British colonial rule. India was a British colony during the nineteenth century. All Indian laws were heavily influenced by English laws and Victorian customs during this time period. The IPC's marital exclusion from the definition of rape arose in response to Victorian patriarchal standards that denied men and women equality, barred married women from owning property, and blended husband and wife identities under the "Doctrine of Coverture."
The world, however, has changed. Under Indian law, husbands and wives now have distinct and separate legal personalities, and much current jurisprudence is particularly concerned with women's safety. This concern is reflected in the slew of statutes enacted since the turn of the century to protect women from violence and harassment, including "The Protection of Women from Domestic Violence Act" and "Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act (POSH)."
Marital Rape in the Light of Article 14 of Constitution
Article 14 of the Indian Constitution states that the Statutory Authorities must not deny equality before the law or equal protection of the laws to any individual who is within Indian territory. Despite the fact that the Indian Constitution guarantees equality to all people, Indian criminal law discriminates against women who have been raped by their own marital partners.Exception 2 violates Article 14 and the right to equality enshrined in it because it discriminates against married women by denying them equal protection from rape and sexual harassment. The Exception categorises women into two groups based on their marital status and prohibits males from committing crimes against their spouses. As a result, the Exception allows married women to be victimised solely on the basis of their marital status, while unmarried women are protected from the same offences.
The distinction made in Exception 2 between married and unmarried women also violates Article 14 because the categorization produced bears no reasonable relationship to the statute's underlying goal. In Budhan Choudhary v. State of Bihar, the Supreme Court held that any classification made under Article 14 of the Indian Constitution is subject to the test of reasonableness, which can only be carried out if the categorization has a rational connection to the goal of the act.
This was also emphasised in the case of State of West Bengal v. Anwar Ali Sarkar. Exception 2, on the other hand, undermines Section 375's goal of protecting women and punishing those who commit rape. Exempting husbands from punishment runs counter to that goal. Rape has the same consequences whether a woman is married or single.
Furthermore, married women may find it more difficult to flee violent situations at home because they are legally and financially bound to their spouses. In reality, Exception 2 encourages husbands to force sexual contact with their wives because they are aware that their actions will not be prohibited or punished by the law. Because no rational link can be established between the Exception's categorization and the Act's underlying goal, it fails the reasonableness test and thus violates Article 14.
Massive Violation of Right to Life and Liberty
The second aspect of Indian marital rape laws is Exception 2's flagrant violation of Article 21 of the Indian Constitution. Article 21 states that no one's life or personal liberty may be taken away except in accordance with legal procedure. The Supreme Court has interpreted this phrase in several decisions to mean more than just the literal protection of life and liberty. Instead, it has ruled that Article 21 rights include, among other things, the rights to health, privacy, dignity, safe living conditions, and a healthy environment.
In recent years, courts have recognised that the fundamental right to life and personal liberty includes the right to refrain from sexual intercourse and to be free of unwanted sexual behaviour. The Supreme Court ruled in State of Karnataka v. Krishnappa that sexual violence is an illegal invasion of a woman's right to privacy and sanctity, as well as a demeaning act. According to the same ruling, non-consensual sexual contact constitutes both sexual and physical assault. The Supreme Court in Suchita Srivastava v. Chandigarh Administration linked the right to make sexual activity decisions to Article 21 rights to personal liberty, privacy, dignity, and bodily integrity.
In Article 21, the Supreme Court expressly recognised the right to choose intimate relationships. In Puttuswamy v. UOI, the Supreme Court recognised the right to privacy as a fundamental right of all citizens, holding that it includes decision-making privacy mirrored by the ability to make intimate choices emphasising one's sexual or procreative essence, as well as choices regarding intimate encounters. Forced sexual cohabitation is a violation of that fundamental right.
There is no distinction between the rights of married and unmarried women in the preceding decisions, and there is no contrary ruling establishing that marital association abridges an individual's right to privacy. As a result, the Supreme Court recognised the right of all women, regardless of marital status, to abstain from sexual intercourse as a fundamental right guaranteed by Article 21 of the Constitution.
Conclusion
Based on all of the statutory provisions and case laws discussed, it is possible to conclude that, while marital rape is not a criminal offence under the IPC in India, it is still a violation of the provisions of fundamental rights enshrined in the Constitution, which supersedes any criminal law. It is unmistakable that Article 21's "right to life" and Article 14's "right to equal treatment under the law" are more than just rights to exist.
In this vein, courts have consistently determined that the "right to life" includes the right to live in dignity. It has also stated numerous times that discrimination between married and unmarried women in rape clauses is a violation of Article 14. Exception 2, on the other hand, fails to deter husbands from engaging in forced sexual contact with their wives, which has a negative impact on women's physical and mental health, as well as their ability to live with dignity.
The aforementioned conclusions show that Exception 2 to Section 375 of the IPC clearly violates Articles 14 and 21 of the Constitution. It is past time for Indian law to recognise the heinous nature of this provision and overturn it.