LEGALITY OF MARITAL RAPE

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ABSTRACT

Despite the fact that marital rape has received increased attention in recent decades, there is still a scarcity of literature on the subject. This article examines the current state of marital rape studies in detail. First, the long history of legal, cultural, and professional invalidation of marital rape victims is reviewed, as well as the unfavorable therapeutic ramifications. Second, studies on marital rape are analyzed, including prevalence, descriptive, and comparison studies. The severity of marital rape in terms of prevalence and post-trauma pain is highlighted in this review, as well as the limitations of existing studies

INTRODUCTION

According to existing law on marital rape, the wife over the age of 15 is presumed to have given her agreement to any sexual conduct by her husband after entering into marital relations, which can never be sanctioned when the husband pushes himself upon her.

 If the wife is between the ages of 12 and 15, the husband can be charged with marital rape, which is punishable by prison for up to 2 years or a fine, or both; if the wife is under the age of 12, the offence is punishable by imprisonment of either description for a term not or less 7 years but which may extend to life or for a term extending to life rape of a judicially separated wife, a crime punishable by imprisonment for up to 10 years and a fine; rape of a judicially separated wife, an offence punishable by imprisonment for up to 2 years and a fine. However, Section 375 of the Indian penal code has a dual purpose: on the one hand, it criminalises marital rape; on the other hand, it restricts marital rape to women under the age of 15, allowing husbands to inflict physical and mental cruelty on their wives after that age.

Marital rape is not considered a crime under the Protection of Women from Domestic Violence Act of 2005, and women can ask for judicial separation from their husbands under the act. The marital rape exception in our laws infringes on Article 21’s essential rights of bodily integrity, bodily self-determination, right to good health, and right to privacy. Furthermore, because the current law does not offer them legal or social support to protect against marital rape, such bad legislation discourages spouses and prosecutors from speaking out against it.

 Lack of social, judicial, and economic support, as well as men not considering women on an equal footing and subsequently dominating their wives, are all factors that contribute to marital rape. Many women are stepping out now, becoming financially independent, but their lack of legal and social support discourages them from filing a complaint or bringing such situations to court.

LEGAL ISSUE

In another case, a Chhattisgarh High Court bench decided that “sexual intercourse or any sexual act with her by the husband would not constitute an offense of rape, even if it was forced or against her will.” As a result, the charge brought against the applicant’s husband under Section 376 of the IPC is erroneous and illegal.” Even though both judgments were issued in distinct jurisdictions, one in civil court and the other in criminal court, the Kerala high court supported the wife’s autonomy.

 The judge’s decision is an obiter dictum, in which the court states that because autonomy is now regarded as a part of privacy and is embedded as a fundamental right, why is marital rape, which breaches one’s bodily integrity and individual autonomy, still not sanctioned under Indian law? As a result, the legal rationale and current laws are inherently contradictory. In the past, the judiciary has refused an appeal to criminalise marital rape for women under the age of 15, stating that parliament will take up the issue and make a decision.

Later, the government argued that sanctioning it would jeopardise the institution of marriage’s integrity and that marriage should be protected. Is a marriage between two people protected when one of them loses his or her right to privacy, individual autonomy, and bodily integrity, which is a fundamental right under Article 21?

The bench in the case of State of Maharashtra v. Madhukar Narayan[1] held that every woman has a right to sexual privacy, and it is not permissible for anyone to violate that privacy whenever he wishes or pleases. As a result, the central government and judiciary must reconcile their reasoning and the law, providing justice to marital rape victims.

It is irrational to only punish marital rape for women under the age of 15 because, after that age, a woman loses her right to privacy, good health, and bodily integrity. In the name of safeguarding marriage, India’s current rape laws penalize and protect women from any form of rape other than marital rape. Is it a rape remedy to force victims to marry their rapists, and if not, why are wives forced to endure such brutal physical and sexual cruelty? It is irrational to only punish marital rape for women under the age of 15 because, after that age, a woman loses her right to privacy, good health, and bodily integrity.

In the name of safeguarding marriage, India’s current rape laws penalize and protect women from any form of rape other than marital rape. Is it a rape remedy to force victims to marry their rapists, and if not, why are wives forced to endure such brutal physical and sexual cruelty? According to a Kerala high court decision, marital rape is considered physical and emotional cruelty, but it is not confined to cruelty because it also violates a fundamental right. As a result, rape by a husband must be treated as seriously as rape by a stranger. As a result, it should be treated as a crime, with the spouse facing propositional punishment.

FUNDAMENTALS OF AMENDING SECTION 375

The addition of exception ii to section 375 will broaden the reach of martial law, raise public awareness, and deter many husbands from raping their wives by approving marital rape. Because there is no legal protection against marital rape under current legislation, it violates Article 14 of the wives’ constitution. Because section 375, exception ii, does not fall under the definition of “just, fair, and reasonable,” it is unconstitutional and must be abolished. Changing the legislation will not eliminate marital rape, but it will raise public knowledge about the issue, protect women’s autonomy and right to privacy, and encourage people to openly discuss such topics.

A law does not eliminate anomalies from society, but it does provide protection against immorality and injustice, therefore penalizing marital rape will provide hope for ending unfairness that has existed since the dawn of civilization.

Article 14 of the Indian Constitution states, “The State shall not refuse to any individual within the jurisdiction of India equality under the law or equal protection.” Even though the Indian Constitution guarantees everyone’s equality, Indian criminal law discriminates against women who have been raped by their husbands.

When the IPC was founded in the 1860s, a married woman was not considered an independent legal entity. Rather, she was seen as her husband’s property. As a result, she lacked many of the rights that come with being an independent legal entity, such as the ability to bring a lawsuit against someone else under her name. The origins of this philosophy can be traced back to Victorian-era British colonial rule. During the nineteenth century, India was a British colony.

However, the times have changed. Husbands and wives now have separate and independent legal identities under India. All Indian laws were strongly influenced by English laws and Victorian conventions during this time period. The marital exemption in the IPC was drafted based on Victorian patriarchal norms that did not see men and women as equals, did not enable married women to own property, and did not recognize men and women as equals. blended husband and wife identities under the “Doctrine of Coverture.” law, and much current jurisprudence is particularly focused on women’s protection.

This concern is reflected in the multiplicity of statutes enacted since the turn of the century to protect women from violence and harassment, such as “The Protection of Women from Domestic Violence Act” and “Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act.”

VIOLATION OF ARTICLES 14 & 21 OF THE INDIAN CONSTITUTION

Insofar as it discriminates against married women by denying them equal protection from rape and sexual harassment, Exception 2 violates Article 14’s right to equality. The Exception splits women into two types based upon their marital status, and it prevents men from serious offenses against their wives. As a result of the Exception, married women can be victimised solely due to various their marital statuses, but unmarried women are protected.

The distinction made between married and unmarried women in Exception 2 also violates Article 14 because the categorization produced has no reasonable relationship to the statute’s underlying aim. The Supreme Court stated in Budhan Choudhary v. State of Bihar[2]and State of West Bengal v. Anwar Ali Sarkar, that any classification made under Article 14 of the Indian Constitution is subject to a reasonableness test that can only be passed if the classification is rationally related to the goal of the act. Exception 2, on the other hand, undermines Section 375’s goal of protecting women and punishing those who commit rape. That purpose is undermined by exempting husbands from the punishment.

In recent years, courts have come to recognize that these broader rights to life and personal liberty include a right to abstain from sexual intercourse and to be free of unwanted sexual behaviour. The Supreme Court ruled in The State of Karnataka v. Krishnappa[3] that “sexual violence, apart from being a demeaning act, is an unlawful breach of a female’s right to privacy and sanctity.” Non-consensual sexual intercourse is considered physical and sexual violence, according to the same ruling. In Suchita Srivastava v. Chandigarh Administration[4], the Supreme Court linked the right to choose a sexual activity with the rights to individual liberty, dignity, morality, and bodily integrity under Article 21 of the Constitution.

In recent years, the Supreme Court has acknowledged a right to choose intimate partnerships in Article 21. In Justice K.S. Puttuswamy (Retd.) v. Union of India[5], the Supreme Court determined the right to privacy and the right of all citizens, holding that it includes “decisional confidentiality represented by an ability to make intimate decisions having additional of one’s sexual or conjugal nature and decisions in respect of intimate relations.” Forcible sexual cohabitation is a violation of that fundamental right. There is no disparity between the rights of marital and unmarried women in the preceding decisions, and there is no opposite finding stating that a marital relationship curtails a person’s right to privacy.

Exception 2 also infringes on Article 21’s right to a healthy and dignified life. As previously stated, the “right to life” envisioned in Article 21 is more than just a right to exist. For example, there is no question that every Indian citizen has a right to housing and that the administration is accountable for its residents’ health. Courts have repeatedly held that the “right to life” encompasses the right to live in dignity. Exception 2, on either hand, fails to deter husbands from engaging in acts of forced sexual intercourse with their wives, harming women’s physical and mental well-being as well as their capacity to work.

The concept of the right to life under Article 21 of the Constitution was stressed in the case of Francis Coralie Muin v. Union Territory of Delhi[6] In this case, Article 21 encompasses the right to live with human dignity and all that entails, to be specific, the necessities of life, such as adequate nutrition, clothing, and shelter over one’s head, as well as facilities for reading, writing, and expressing oneself in various forms, as well as the freedom to move about and mix and mingle with other people. The right to live with human dignity is one of the most basic components of the right to life, as it determines a person’s independence.

CONCLUSION

Even though the Constitution does not directly mention it, the right to significant self-assurance can also fall under the scope of Article 21. Such a right exists in the larger system of the right to life and personal liberty. The right to self-assurance is founded on the idea that the individual is the last authority in matters involving her or his body or money, and that the more private the decision, the more powerful the person’s privilege. They will be the primary architects of his fate, which will determine his reality. A lady’s sexual relationship is a standout amongst the most personal decisions she makes.

Rape in the bedroom is not completely outlawed in India. It is undeniably a genuine type of female mistreatment that requires the authorities’ attention. Because the consequences of marital rape are so severe, it is clear that criminalising the crime of marital rape is urgently needed. the state that previously valued non-interference in family circles.


[1] State of Maharashtra v. Madhukar Narayan AIR 1991 SC 207.

[2] Budhan Choudhary v. State of Bihar, 1955 SCR (1)1045.

[3] State of Karnataka v. Krishnappa, 2000 CriLJ 1793.

[4] In Suchita Srivastava v. Chandigarh Administration,. (2009) 9 SCC 1.

[5] Justice K.S. Puttuswamy (Retd.) v. Union of India, Writ Petition Civil No. 494 of 2012.

[6] Francis Coralie Muin v. Union Territory of Delhi, AIR (1981) SC 802.

Author: Utkarsh tiwari, University of Petroleum and Energy Studies, Dehradun

Editor: Kanishka VaishSenior Editor, LexLife India

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