Domestic violence is a long-standing issue in India, and it has only become worse in recent years. Domestic abuse affects over 70% of women in India, according to the National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019 report. Marital rape is one symptom of domestic abuse. Marital rape, or forcing your spouse to have sex without their consent, is an unethical but widespread technique to demean and disempower women. Marital rape has already been condemned in over 100 nations, but India remains one of just 36 countries where it is still not criminalized. Despite the fact that numerous legislative changes have been made in criminal law to safeguard women, the non-criminalization of marital rape in India damages women’s dignity and human rights.
In India, what is the legal status of marital rape?
Rape is defined in Section 375 of the Indian Penal Code (IPC) as any type of sexual assault that involves non-consensual contact with a woman. Exception 2 to Section 375 is responsible for the non-criminalization of marital rape in India. Exception 2 to Section 375, on the other hand, exempts unwilling sexual intercourse between a husband and a wife above the age of fifteen from Section 375’s definition of “rape,” and so protects such actions from prosecution. After entering into marital intercourse, a woman is believed to give her husband eternal agreement to have sex with her.
In India, the notion of marital rape is the pinnacle of what we term “implied consent.” Marriage between a man and a woman in this context indicates that both parties have consented to sexual intercourse, and it cannot be otherwise. Marital rape is a violation of both legal and constitutional rights. The doctrine of coverture: the non-criminalization of marital rape dates back to the British era. The ideology of blending the woman’s identity with that of her husband greatly impacted and stemmed from marital rape. A married woman was not regarded a separate legal person when the IPC was created in the 1860s. The marital exemption to the IPC’s definition of rape was designed on the basis of Victorian patriarchal traditions that did not acknowledge men and women as equals, did not allow married women to hold property, and blended husband and wife identities under the “Doctrine of Coverture. “Article 14 violation: Marital rape breaches the right to equality guaranteed by Article 14 of the Indian constitution. The Exception divides women into two classes based on their marital status and protects males from offences committed against their spouses. As a result, the Exception allows married women to be victimised for no reason other than their marital status while shielding unmarried women from the same offences. efeats the Spirit of IPC Section 375: The goal of IPC Section 375 is to protect women and punish those who indulge in the horrible act of rape.Exempting spouses from punishment, on the other hand, is diametrically opposed to that goal, because the penalties of rape are the same whether a woman is married or single. 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 imaginative interpretation, the rights inherent in Article 21 include, among other things, the rights to health, privacy, dignity, safe living circumstances, and a safe environment. The Supreme Court ruled in State of Karnataka v. Krishnappa that Sexual assault, in addition to being a demeaning act, is an illegal invasion of a female’s right to privacy and sanctity. In the same decision, it was determined that non-consensual sexual intercourse constitutes bodily and sexual violence.
The Supreme Court associated the freedom 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 indicated by the freedom to make personal decisions principally involving one’s sexual or procreative nature and decisions about intimate interactions.” In all of these decisions, the Supreme Court has recognised the right of all women, regardless of marital status, to refrain from sexual activity as a fundamental right guaranteed by Article 21 of the Constitution.
As a result, forced sexual cohabitation is a breach of article 21’s basic right.
The Way Forward
Violence against women is defined as “any act of gender-based violence that results in, or is likely to result in, bodily, sexual, or mental injury or suffering to women, including threats of such acts, coercion, or arbitrary loss of liberty, whether happening in public or private life.”
The UN Committee on the Elimination of Discrimination Against Women (CEDAW) recommended to the Indian government in 2013 that marital rape be criminalised. The same was proposed by the JS Verma committee, which was formed in the aftermath of widespread demonstrations over the December 16, 2012 gang rape case. Women will be protected from violent spouses if this legislation is repealed, and they will be able to receive the support they need to recover from marital rape.
Violence against women is defined as “any act of gender-based violence that results in, or is likely to result in, bodily, sexual, or mental injury or suffering to women, including threats of such acts, coercion, or arbitrary loss of liberty, whether happening in public or private life.”
Conclusion
Indian law now affords husbands and wives separate and independent legal identities, and much jurisprudence in the modern era is explicitly concerned with the protection of women.Therefore, it is high time that the legislature should take cognisance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception 2) of IPC..
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