“Marriage Shouldn't Be a Shield: The Constitutional Struggle Against Marital Rape

B:- Anuj Kulhar (20ba011)

1.   Introduction

“No one shall be deprived of his life or liberty unless in accordance with the law.” We all know what Article 21 of the Indian Constitution says and means. However, it appears that married women are not included under the term ‘person', as their right to live with dignity is no longer valued. We are discussing how marital rape, as defined in Section 375 exception 2, violates the right to life.

Courts recently “recognized a right to abstain from sexual conduct and to be free of unwanted sexual practices in the case of State of Karnataka versus Krishnappa[1]. Sexual intercourse that is not consented to constitutes bodily and sexual violence. In the case of Suchita Srivastava and Anr versus Chandigarh Administration 2009[2], the Supreme Court recognized a woman's right to make reproductive choices as a component of personal liberty as defined by article 21 of the Indian constitution. Sexual cohabitation under duress is a violation of human rights. The preceding decisions make no distinction between married and unmarried women's rights, and no dissenting opinion asserts that marital affiliation impairs an individual's right to privacy.”

“It is recognized that criminalizing wife rape or making it an offence will eliminate negative attitudes that promote marital rape, as the court concluded that the husband is solely liable for outraging her modesty and unfaithfulness.” (Nimeshbhai Bharatbhai Desai v. Gujarat State)[3]. “Similarly, in Independent Thought Vs. Union of India and Anr[4], the Supreme Court criminalized sexual relations with a juvenile wife aged 15 to 18 but made no statement regarding marital rape of a woman over 18.[5]”

2.   What’s India’s Stand?

In India “marital rape exists de facto but not de jure. In other nations, the legislation has criminalized marital rape or the judiciary has actively recognized it as a crime, but in India, the judiciary seems to be at odds. A rape is a crime against basic human rights and a breach of the victim's most prized fundamental right, the right to life guaranteed by Article 21 of the Constitution. The Indian Penal Code, 1860, Section 375, exempts general marital rape.” This exception stems from Sir Matthew Hale words, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract.”

The “rape law only covers two types of married women: those under the age of 15[6] and those divorced from their spouses.[7] Less severe punishments are meted out to rapists who are married to victims under the age of 15. In 1983, the Indian Penal Code, 1860, was amended to include Section 376-A, which criminalized rape of a judicially separated wife. However, this is merely a patchwork measure and Parliament must do much more to address marital rape. We saw hope when the Law Commission recommended in its 42nd Report that sexual intercourse by a man with his minor wife be made an offence.” The Joint Committee that reviewed the proposal dismissed the recommendation. When a man marries a woman, sex is also a part of the package.

Many “women's groups including the National Commission for Women have called for the repeal of exception of Section 375 of the Indian Penal Code, which stipulates that sexual intercourse between a man and his own wife who is not under the age of fifteen is not rape. The most significant of a Task Force's four recommendations on rape under the Indian Penal Code concerns the definition of rape. It argued that rape should be defined broadly to include all forms of sexual abuse. The Law Commission proposes that the new concept of sexual assault replace the existing definition of rape in Section 375 IPC.” The Task Force, like the Law Commission, did not advocate including marital rape in the new definition. Currently, Indian law does not adequately promote women's bodily integrity and sexual autonomy.[8]

3.   Where is the Scope of Expansion?

This “section discusses the major legal flaws that hinder women's empowerment against marital rape. Article 21 of the Indian Constitution has been interpreted by the courts to include the right to live with dignity.[9] Marital rape plainly breaches a woman's right to dignity, and so the exception provided under Section 375 of the Indian Penal Code, 1860, is alleged to be in violation of Article 21 of the Constitution. Although the Constitution requires every citizen to repudiate activities demeaning to a woman's dignity, it appears that domestic violence and marital rape do not fall under the definition of dignity.” In contrast, the law allows non-consensual sexual relations with a wife who is only 15 years old. “The Indian Penal Code, 1860, defines rape as a sexual act performed on a minor who is not the man's wife. But if she is a wife, under 15, and refuses, it is not rape. The Indian Penal Code, 1860, defines rape as non-consensual intercourse with a wife aged 12 to 15.” However, the punishment is a fine or imprisonment for up to 2 years, or both, which is less than the sentence for rape outside the marriage.[10]

4.   What is the Way Forward? (Suggestions)

The Indian Penal Code “should be amended to include marital rape. Marital rape should be punished as rape under Indian Penal Code Section 376. That fact they were married shouldn't matter. The fact that the wife did not cry or struggle aggressively is not a defense. Marital rape should be grounds for divorce. It is necessary to know the legal position in cases of marital rape. The wife can ask for divorce, but if she doesn't want to, the marriage should be allowed to continue. Marriage laws should change as well.”

This way, we may expand the scope of Article 21 of the Indian Constitution and help all women.

5.   Conclusion

Admittedly, changing the legislation on sexual offences is a difficult task, especially in a country like India where personal and religious laws coexist with new statutory criminal law amendments. While important changes to the legislation involving sexual offences are required, such as gender neutrality and eliminating disparities, a comprehensive rewrite of the law is not advised.

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[1] The State of Karnataka vs Krishnappa (2000) 4 SCC 75

[2] Suchita Srivastava & Anr vs Chandigarh Administration (2008)14 SCR 989

[3] Nimeshbhai Bharatbhai Desai vs State of Gujarat 2018 SCC Guj,732

[4] Independent Thought vs Union of India 2017 10 SCC 800

[5] Gazala Parveen, 'A Need for Criminalization of Marital Rape - Ipleaders' (iPleaders, 2021) <https://blog.ipleaders.in/marital-rape-criminalization/> accessed 11 September 2021.

[6] Exceptions to S. 375, The Indian Penal Code, 1960

[7] S. 376(a), The Indian Penal Code, 1960.

[8] Saurabh Mishra and Sarvesh Singh, 'Marital Rape - Myth, Reality and Need for Criminalization' (Supremecourtcases.com, 2021) <http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=586> accessed 11 September 2021.

[9] Francis Coralie Mullin Vs the Administrator, Union Territory of Delhi & Ors (1981) 1 SCC 608

[10] Saurabh Mishra and Sarvesh Singh (n 8)