Rape as a term itself explains a non- consensual sexual intercourse between a male and a female. Rape is considered as one of the heinous crimes in India till date. Every year there is an increasing number of rape cases filed in India, but the question is, “Are all the victims in a position to gain justice?” It is usually easy for a man to get away with the crime of rape, but it is the woman who carries the scares for the rest of her life.

In India, Rape as a term has been particular when it comes to “who does it.” When a person comes across the word “rape” or for a matter hears a very horrifying rape case, he/ she immediately questions the character of the victim, or maybe she has done something wrong and due to which she deserved this. Most of the people have these preconceived notions that rape can only be done by a stranger or someone who wants to take revenge or the victim’s character is being questioned.

But one of the most critical points which are left out is “Can a husband be called as a ‘rapist’ when he exploits his wife sexually?” and usually the answer is that a husband can never be a rapist as he has a right to have sexual intercourse with his wife. Consent is the last thing that matters when it comes to marital sex. It is challenging for a woman to believe that a husband can rape his wife. But it is difficult for a victim to come out and express the incident as no one will believe her what happened between those four walls. A woman has no right to her own body, but her husband has complete liberty, and he is the one who can fulfill his wishes whenever he wants. Such believe been carried out till date as women are being treated as a machine for creating babies.

MARITAL RAPE

Marital rape can be defined as an act where there is unwanted penetration (vaginal, anal, or oral) or intercourse, which is obtained by force, threat, or when the wife has consented. The term ‘rape’ has been derived from the term’ rapio,’ which means to seize. Rape is therefore defined as the forcible seizure of a woman, ravishing a woman without her consent. It is one of the heinous crimes and the most common crime in India. Every year, several rape cases are found of them, only some are brought to justice while the other remains unnoticed.

Rape has been recognized by the law, and there is a legal remedy available. As per the Supreme Court’s decision, rape is described as a ‘deathless shame and the gravest crime against human dignity.’ [i] Rape is not only outraging the modesty of a woman but also wrecking the life of a woman.

Marital rape has not been conceptualized by the law, and it gives the leverage for a man to carry out such heinous crimes on his wife. Therefore, marital rape has not been recognized as a crime under law as a woman is considered to be her husband’s property.

CRITICAL ANALYSIS

Rape has been codified under Section 375 of the Indian Penal Code (IPC), which includes all kinds of sexual assault involving non-consensual intercourse with a woman. [ii] Of them, exception 2 to section 375 exempts the non-consensual sexual intercourse between a husband and a wife above 15 years of age and immunizes such acts from prosecution.

Non- consensual sexual intercourse between a husband and a wife is regarded as a criminal offence in most parts of the country. Still, India is one of the thirty-sixth countries that has not yet criminalized marital rape. [iii] The Supreme Court, in one of its decision, has also criminalized non- consensual sexual intercourse with a wife between 15 to 18 years of age. [iv]

Exception 2 to Section 375 of the IPC violates various articles under the Constitution of India. One of them being Article 14 to the Indian Constitution. Article 14 talks about the ‘right to equality’ to which every citizen is entitled to.[v]

Such exception two, which violates article 14, creates a distinction between married and unmarried women by denying them equal protection and equal legal rights from harassment. In Budhan Choudhary vs. State of Bihar[vi]and State of West Bengal vs. Anwar Ali Sarkar[vii], the SC held that any classification which falls under Article 14 of the Constitution is subject to reasonableness test that can be passed if there is some rational nexus to the objective that the act seeks to achieve. On the other hand, exception 2 frustrates the aim of section 375 completely. The consequences of rape are similar to both married and unmarried women, but the law discriminates both of them by not providing an equal legal remedy. Exception 2 gives the husband the privilege to have sex whenever he wants without the wife’s consent. This is in complete violation of Article 14. Moreover, it becomes challenging for a married woman to get away with domestic abuse as she is financially tied to her husband.

Article 21 of the Indian Constitution, which talks about ‘right to life and personal liberty’ available to every citizen of India, is also being violated due to exception 2. To be more specific, the SC has also passed various judgments with regards to this article and broadening the aspect of article 21 by mentioning the right to health, privacy, safety, etc. falls under this category. In the case of The State of Karnataka vs. Krishnappa, the SC held that, “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.” [viii] In the same judgment, it was also held that non- consensual sexual intercourse amounts to physical and sexual violence.

Further, in the case of Suchita Srivastava vs. Chandigarh Administration,the SC considered the right to make choices relating to sexual activity with regards to rights to personal liberty, privacy, dignity and bodily integrity under the article 21 of the Indian Constitution.

Recently, SC has recognized the right to choose intimate relations under article 21. In Justice K.S. Puttuswamy (Retd.) vs. Union of India,the SC has recognized the right to privacy as a fundamental right for all the citizens and held that the right to privacy is inclusive of decisional privacy, which means that it can make intimate decisions based on one’s sexual or procreative nature. [ix]

The court has time and again failed to provide conclusive legal remedies to married females due to which they suffer abuse at a higher rate. These loopholes need to be addressed at the earliest, as this is when the law should make some constructive changes relating to marital rape.

The 42nd and the 172nd Law Commission report suggested some constructive reforms such as the definition of ‘sexual assault’ should be introduced rather than using the term ‘rape,’ exception two, which is provided under section 375 of the IPC should be immediately deleted as it violates human rights. Sexual intercourse should not be limited to a particular body part, but the whole body is conferred in the case of Sakshi vs. Union of India and others[x]. Rape laws should not be gender-specific but should instead be gender-neutral.

Therefore, there was a list of recommendations made in these two law commission reports, but the same had never been implemented by the government.

CONCLUSION

Rape is one of the heinous crimes which happens to humankind. Rape cases have always been given importance by the judiciary, but there are very few cases in number which have been brought to justice. Rape laws are very gender-specific due to which there is discrimination on a large scale which people face. One of the prejudices which happen between the same gender, i.e., a woman who is discriminated against as a married and unmarried woman. An unmarried woman is usually seen as someone willing to have sex with anyone; therefore, their human rights are violated on a large scale. On the other hand, when her husband rapes a married woman, she is not given much importance in society as she is acknowledged as her’ husband’s property’. It is said that a husband has a right to have sexual intercourse with his wife, and her consent doesn’t matter. The most important question is that if an unmarried woman’s consent matters, then why not a married woman’s? If a husband has certain privileges in society, then so does his wife have, and one of the essential rights which every wife should be subjected to has consented. The moment a woman gets married, her husband is the one who is the backbone of his wife, and she is the one who trusts her husband the first. When we talk about having a successful marriage, an essential aspect of having a successful marriage is that both the husband and the wife should respect each other and their rights. None of them have a right to exploit their partner.

Therefore, after understanding today’s marital rape status, there is an urgent need for implementation of some stringent laws as suicidal rates and divorce petitions are increasing on a large scale. Enforcement of such stringent laws would obligate the husband to carry out such heinous crimes on his wife. The institution of marriage is very sacred, and the same has to be respected by those involved in it. Rather than focusing on new recommendations, it is necessary that the previous suggestions, made through the 42nd and the 172nd law commission reports, should be addressed first by the government.

 

 

REFERENCES

[i] Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922.

[ii] Indian Penal Code § 375, No. 45 of 1860, India Code.

[iii] Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016.

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

[v] India Constitution, Article 14.

[vi] AIR (1955) SC 191 (India).

[vii] AIR (1952) SC 75 (India).

[viii] (2000) 4 SCC 75 (India).

[ix] (2017) AIR 2017 SC 4161 (India).

[x] 2004 (5) SCC 518

Credits: LawMentor (https://www.thelawmentor.org/)