Author: Karthik. T
Domestic violence is a long-standing issue in India, and it has only gotten worse in recent years. Domestic abuse affects around 70% of Indian women, according to the National Crime Records Bureau's (NCRB) "Crime in India" 2019 report.
Marital rape is one of the many manifestations of domestic violence. The act of forcing your spouse to have sex without their consent, known as marital rape, is an unjust but all-too-common technique to demean and disempower women.
Today, more than 100 countries have passed laws prohibiting marital rape, yet India is one of just 36 countries where the crime remains unpunished. Even though numerous changes to criminal law have been made to safeguard women, the non-criminalization of marital rape in India violates women's dignity and human rights.
In India, what is the status of marital rape?
All forms of sexual assault involving non-consensual contact with a woman are included in the definition of rape codified in Section 375 of the Indian Penal Code (IPC).
Exception 2 to Section 375 allows for the non-criminalization of marital rape in India.
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 so protects such actions from prosecution.
After entering into marital intercourse, a wife is presumed to give her husband eternal agreement to have sex with her.
In India, the concept of marital rape exemplifies what we call "implied consent." Marriage between a man and a woman in this context implies that both parties have agreed to engage in sexual activity, and it cannot be otherwise.
Marital rape is a violation of both legal and constitutional rights.
Coverture Doctrine: Marital rape's non-criminalized character dates back to the British era. The theory of blending a woman's identity with that of her husband was heavily influenced by and developed from the practice of marital rape. A married woman was not regarded as a separate legal entity when the IPC was created in the 1860s.
The marital exception to the IPC's definition of rape was developed 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."
Article 14 Violation: Marital rape is a violation of the Indian constitution's guarantee of equality, which is established in Article 14.
The Exception divides women into two groups based on their marital status and protects males from committing crimes against their spouses. As a result, the Exception allows married women to be victimized only because of their marital status, while unmarried women are protected from the same offenses.
Defeats the IPC's Section 375 Spirit: Section 375 of the Indian Penal Code was enacted to protect women and punish those who indulge in the barbaric act of rape. Exempting husbands from punishment, on the other hand, runs counter to that goal because the penalties of rape are the same whether a woman is married or not. Furthermore, because they are legally and financially bound to their spouses, married women may find it more difficult to flee violent situations at home.
Violation of Article 21: According to the Supreme Court's creative interpretation, rights entrenched in Article 21 include, among other things, the rights to health, privacy, dignity, safe living conditions, and a safe environment.
The Supreme Court ruled in the State of Karnataka v. Krishnappa that sexual violence is an unlawful invasion of a woman's right to privacy and sanctity, in addition to being a demeaning act.
Non-consensual sexual intercourse is considered physical and sexual violence, according to the same ruling.
The Supreme Court associated the right to make sexual activity choices with the rights to personal liberty, privacy, dignity, and physical integrity under Article 21 of the Constitution in the case of Suchita Srivastava v. Chandigarh Administration.
The Supreme Court acknowledged the right to privacy as a basic right of all people in Justice K.S.Puttuswamy (Retd.) v. Union of India.
The right to privacy includes "decisional privacy," which is defined as "the ability to make intimate decisions about one's sexual or procreative nature, as well as decisions about personal relations."
The Supreme Court has acknowledged the right of all women, regardless of their marital status, to abstain from sexual activity as a basic right guaranteed by Article 21 of the Constitution in all of these decisions.
As a result, forced sexual cohabitation is a breach of Article 21's fundamental right.
Husbands and wives now have separate and independent legal identities under Indian law, and much current jurisprudence particularly has a focus on women's protection.
As a result, it is past time for the legislature to recognize this legal flaw and eliminate Section 375 (Exception 2) of the IPC, bringing marital rape under the jurisdiction of rape legislation.