LEGAL ASPECTS OF MARITAL RAPE

“She was beautiful daughter, today a forceful bride, tomorrow she will become victim of harmonized crime”
-Unknown

The word ‘rape’ has been derived from the term ‘rapio’, which means ‘to seize’. Rape is therefore, forcible seizure, or the ravishment of a woman without her consent, by force, fear or fraud. It involves coercive, non consensual sexual intercourse with a woman. Rape can be viewed as an act of violence of the private person of a woman, an outrage by all means. It is the ultimate violation of the self of a woman. The Supreme Court of India has aptly described it as ‘deathless shame and the gravest crime against human dignity’. Rape is not merely a physical assault, but isdestructive of the whole persona of the victim.

Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. Marital rape could be by the use of force only, a battering rape or a sadistic/obsessive rape. It is a non-consensual act of violent perversion by a husband against the wife where she is physically and sexually abused. In this article I would like present current scenario of marital rape and its legal aspects.

In the Current Scenario, studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soar to 1/3rd to 1/2 among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. Women who became prime targets for marital rape are those who attempt to flee.

According a report every 6 hours; a young married woman is burnt or beaten to death, or driven to suicide from emotional abuse by her husband. The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49 have been beaten, raped or forced to provide sex. In 2005, 6787 cases were recorded of women murdered by their husbands or their husbands’ families. 56% of Indian women believed occasional wife-beating to be justified.

The definition of rape codified in Section 375 of the IPC[1] includes all forms of sexual assault involving non consensual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s definition of “rape” and thus immunizes such acts from prosecution. As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations. The Supreme Court of India and various High Courts are currently flooded with writ petitions challenging the constitutionality of this exception, and in a recent landmark judgment, the Supreme Court criminalized unwilling sexual contact with a wife between fifteen and eighteen years of age[2]

As per the Indian Penal Code, the instances wherein the husband can be criminally prosecuted for an offence of marital rape are as under:

  1. When the wife is between 12 – 15 years of age, offence punishable with imprisonment up to 2 years or fine, or both;
  2. When the wife is below 12 years of age, offence punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine;
  3. Rape of a judicially separated wife, offence punishable with imprisonment up to    2 years and fine;
  4. Rape of wife of above 15 years in age is not punishable.

Violation of different Article of Indian Constitution

Article 14 of the Indian Constitution ensures that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. There is violation of this Article in Exception 2[3]as the Constitution guarantees equality to all but Indian criminal law discriminates against female victims who have been raped by their own husbands.Exception 2 also violates the right to equality enshrined in Article 14 insofar as it discriminates against married women by denying them equal protection from rape and sexual harassment.

Exception 2 is also a violation of Article 21 of the Indian Constitution.Article 21 states that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” The Supreme Court has interpreted this clause in various judgments to extend beyond the purely literal guarantee to life and liberty. Instead, it has held that the rights enshrined in Article 21 include the rights to health, privacy, dignity, safe living conditions, and safe environment, among others.Additionally, Exception 2 violates Article 21’s right to live a healthy and dignified life. As mentioned above, it is well settled that the “right to life” envisaged in Article 21 is not merely a right to exist. For example, there can be no dispute that every citizen of India has the right to receive healthcare or that the state is required to provide for the health of its constituents.

In recent years, courts have begun to acknowledge a right to abstain from sexual intercourse and to be free of unwanted sexual activity enshrined in these broader rights to life and personal liberty. In The State of Karnataka v. Krishnappa[4], the Supreme Court held that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.”

In the same judgment, it held that non-consensual sexual intercourse amounts to physical and sexual violence. Later, in Suchita Srivastava v. Chandigarh Administration[5], the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.

CONCLUSION

Now from above points it can be concluded that exception 2 of Section 375 of Indian penal code violates Article 14 and Article 21 of Indian Constitution. Therefore the exception 2 should be strike down and rape of married women irrespective if her age should be penalized.

Marriage is very sacred bonding between husband and wife. Marriage is more than physical union; it is a Spiritual and emotional union. If one person is not willing to have physical intercourse them the other person should respect decision of that person. There should be proper law or guideline regarding the physical intercourse between husband and wife. Either wife or husband should not force one for having physical relationship. If they do so then they should be penalized. 


[1]  Indian penal code,1860

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

[3] 375 of IPC, 1860

[4]2000 CriLJ 1793, JT 2000 (3) SC 516, 2000 (2) SCALE 610, (2000) 4 SCC 75, 2000 2 SCR 761, 2000 (2) UJ 919 SC

[5] SCC, SC, 9, p 1. Roe v Wade (1973): 410 US 113

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