“I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a woman to hate her husband, I would hate him as a rapist”.
When we talk about rape, we talk about crime against an aggrieved person’s body. This is the crime that drowns the dignity of the aggrieved persons in their own eyes and further suffocates their rights given to them by the constitution with cruelty.
Section 375 of Indian Penal Code (IPC) 1860 defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case, if she is under 18 years of age.” but, essentials for rape under section 375 IPC have exceptions also.
One of the exceptions is marital rape.
“Marital Rape” is an act of non-consensual sexual intercourse between a man and a woman, who are in legal wedlock.
The significance of Section 375 of IPC and the gravity of marital rape can be acknowledged by the remark of Justice Krishna Iyer in the case of [Rafiq v. State of UP] that, “A murderer kills the body, but a rapist kills the soul”.
Ambiguity in Exception-2 of Section 375 of IPC
Section 375 which consists of a deep explanation about rape, has certain exceptions which are as follows:
- A medical procedure or intervention shall not constitute rape.
- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
The second exception, which certainly gives the right to a husband to have intercourse with his wife even without her consent, questions the bodily integrity of a woman, her dignity and will. It means if the wife is over 15 years old, then intercourse without her consent would not be considered rape under IPC. By perusing the Exception-2 with 7 conditions, then, at that point, the special case will sustain.
According to Prof. PSA Pillai ” It is believed that the husband’s immunity for material rape is premised on the assumption that a woman, on marriage, gives forever her consent to the husband on the assumption that a woman, on marriage, gives forever her consent to the husband for sexual intercourse. Her husband has the right to have sexual intercourse with her, whether she is willing or not, and she is under obligation to surrender or submit to his will and desire.”
What implies here is that the husband gets the license to rape his wife once they are married resulting in catastrophe for her nobility and confidence.
Sexual violence apart from being a dehumanizing act, is an unlawful intrusion into the privacy and sanctity of a woman, resulting in a serious blow to her dignity and self-esteem¹. Justice Deepak Gupta in the case of Independent Thought v. Union of India states that can she be deprived of her right to say yes or no to having sex with her husband, even if he has consented to the marriage?
In my view, there is only one answer to this and the answer must be a resounding NO.
Marital rape and Laws in India
Human rights are those legitimate which all humans ought to have and society should practice these rights to make the world a better place. Human rights in India are also provided in the form of the ‘Magna Carta’ that is part III of the Indian constitution.
The Hon’ble Chief Justice Subba Rao in Golak Nath v. the State of Punjab stated that “Fundamental rights are the modern name for what has been traditionally known as natural rights”, therefore the fundamental rights are recognized as ‘Natural Rights’ or ‘Human Rights.
The second exception to section 375 of IPC makes a woman’s fundamental right to sexual independence (decisional privacy) subject to the impulses of her husband. Exception-2 makes a wife subordinate to her husband, or to lay it more simply, a property of her husband.
Exception-2 is obviously behind the times, and being hostile to fundamental rights is contradictory to our constitution. The Constitution of India has not only created or conferred these rights but has recognized, guaranteed, and protected the inalienable inherent basic rights by enacting Articles 14, 15, 19, 21 and other Articles.
The theory of justice as fairness, a ground-breaking work of the American philosopher John Rawls, explains that a social contract like marriage violates the principle of justice that is immoral. He further states that this initial situation is called “the veil of ignorance”, the veil here regards the curtain in front of the lawmakers which deprived them to make harsh laws against such heinous crimes.
Rape is considered a more serious offence against humankind than murder. Section 375 of IPC assumes a vital part in dealing with the ones who are denied their spirits by those culprits.
Constitutionality of Section 375 of IPC Exception 2
Article 21 of the Constitution of India provides each individual with the right to have their dignity respected and protected. The right of a woman to keep up with her substantial uprightness is destroyed as her husband has command over her body and he can have intercourse without her consent, and such actions would not be considered RAPE.
The second exception of section 375 violates the constitutional rights of women that are equal for every citizen of the country.
Article 15(3) of the Constitution says that “nothing in this Article shall prevent the state from making any special provision for women and children”. A special provision for women under Article 15(3) cannot be construed as authority a discriminatory against women and the word “for” in the context means in favour of.
Thus, Section 375 of IPC is not protected by Article 15(3) of the Constitution under the special provision for women because it discriminates against the rights of women. It also discriminates against the rights of women under Articles 14, 15, and 21 of the Indian Constitution. [Sri Mahedab Jiew v. Dr B.B. Sen]
Hence, a husband having non-consensual intercourse with his wife should not be excluded from the definition of rape described in Section 375 of IPC.
Consequently, the points that the law excludes from the definition of rape which is hideous although treated by the law and which are the forms of rape are as below:
(a)Rape by a husband of his pregnant wife,
(b) Rape by a husband of his wife incapable of giving her consent,
(c) Rape by a husband of his wife who is suffering from mental or physical disability,
(d) Rape by a husband that causes grievous bodily harm or maims or disfigures or endangers the life of his wife,
(e) repeated rapes by a husband of his wife.
which concludes that even the crime is this heinous and serious and if in case the wife gets fatal injury which might amount to the danger of life, the husband still cannot be punished for the same. Which eventually harms the right to sexual autonomy which is considered as an inherent human right that is also a fundamental right to personal liberty, self-esteem, privacy, dignity, and integrity by the Apex Court.
Considering this the exceptions made in Section 375 of the Indian Penal Code are incompatible with the Indian Constitution and are not equal when marriage is considered.
The Honourable Supreme Court has noted in the observation made by Lord Keith that “Marriage in a modern time is regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband”. Lord Keith made these observations regarding the question which arose in the court of law was, whether it is possible for a husband to rape his wife?
The 172nd Law Commission report had made various recommendations for a substantial change in the law concerning rape which also includes marital rape.
Marital rape: Exception (2) of section 375 of IPC should be abolished. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.
“Changes in the law, therefore, need to be accompanied by widespread measures raising awareness of women’s rights to autonomy and physical integrity, regardless of marriage or other intimate relationship.”
Clearly, rather than the Justice Verma Committee’s desire to raise awareness among women on their right to autonomy and physical integrity, the government is keener on “moral and social awareness” which is a euphemism for appearing to patriarchal notions of honour that tell men to respect women and do the right thing.
The Verma Committee report points out a 2010 study suggesting that 18.8% of the women are raped by their partners on one or more occasions. The rate of reporting and conviction also remains low; aggravated by the prevalent beliefs that marital rape is acceptable or is less serious than the other types of rape.
In a judgment conveyed in 2018 [Nimeshbhai Bharatbhai Desal vs the State of Gujarat], the Gujarat High Court saw that “Marital Rape is a serious deal, tragically, it isn’t drawing in significance to the Government. Justice JB Pardiwala, in his judgment, has likewise alluded to the abolition of exemptions made in different Countries. ”
A husband who has sex with his wife isn’t just utilizing a property, he is fulfilling a marital consortium with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing her to engage in a sexual act without her full and free consent the judge observed.
Marital rape has been criminalised in more than 100 countries, but India stands tall in the luminous league of about 32 countries where marital rape is not criminalised. Pakistan, Bangladesh, Afghanistan, Botswana, Iran, Nigeria, and Libya are some of the esteemed members of this extraordinary league.
Our penal laws, handed down from the British, remain cast in stone, while the English themselves criminalised marital rape way back in 1991. An irony long eclipsed by the great Indian patriarchal mindset.
The Indian constitution gives rights to women to perform contracts, to vote, to contest elections, etc., and we do have many examples of women who have uplifted our nation. But on the same side when women are not allowed to their right to personal liberty and personal choices, sexual autonomy, integrity when it comes to non-consensual intercourse with her husband, there is something wrong with the exception-2 of section 375.
It is true and a bitter fact that criminalisation of marital rape can be used by women to frame innocent husbands and the legislation would have considered this point for not criminalising marital rape. However, the possibility of misuse of the provision is not a valid ground for legalizing marital rape.
By Harsh Upadhyay and Priyanshi Trivedi, 3rd Year B.A. LL.B. (Hons.), Faculty of Law, The Maharaja Sayajirao University of Baroda, Vadodara