Marital Rapes in India

Introduction

In India, domestic violence is a pervasive issue that has only gotten worse in recent years. The ‘Crime in India’ 2019 report from the National Crime Records Bureau (NCRB) estimates that domestic violence affects roughly 70% of Indian women. Marital rape is one example of this domestic violence. An unjust but frequent method of demeaning and undermining women is marital rape, which is the act of forcing your spouse to have sex without proper consent. Currently, more than 100 nations have passed laws outlawing marital rape, but India is one of just 36 nations that have not yet done so.

Indian Marital Rape Statistics

The Indian Penal Code (IPC) defines rape as any sexual assault involving non-consensual contact with a woman. This definition is found in Section 375.

The Exception 2 to Section 375 is what prevents marital rape in India from being criminalised.

However, Section 375’s Exception 2 exempts unwelcome sexual encounters between a husband and a wife older than fifteen from its definition of “rape,” shielding such behaviours from legal consequences.

After engaging in marital relations, a wife is currently presumed to have given her husband her unrestricted consent to have sex.

Marital rape is against the law and the constitution. Principle of Coverture Marital rape’s non-criminalized nature dates back to the British era. This doctrine of fusing a woman’s identity with her husband’s was a major influence on and source of the Marital rape. A married woman was not regarded as a separate legal entity at the time the IPC was written in the 1860s. The “Doctrine of Coverture,” which merged the identities of husband and wife, and other Victorian patriarchal norms served as the foundation for the marital exception to the IPC’s definition of rape. These norms denied married women the right to own property and did not recognise them as equals.

Marital rape constitutes a violation of Article 14 of the Indian Constitution, which upholds the right to equality. The Exception divides women into two groups based on their marital status and protects husbands from their wives’ misdeeds. By allowing married women to be victimised solely because of their marital status, the Exception shields unmarried women from the same crimes.

It defeats the intension of IPC Section 375 by Protecting women and punishing those who commit the cruel act of rape are the goals of Section 375 of the IPC. But protecting husbands from punishment completely runs counter to that goal because rape has the same repercussions whether a victim is married or not. Moreover, because they are legally and financially dependent on their husbands, married women might find it more challenging to leave abusive situations at home.

Violation of

Article 21.

The Supreme Court has given the rights enshrined in Article 21 a broad interpretation, interpreting them to include, among other things, the rights to health, privacy, dignity, safe living conditions, and a safe environment. The Supreme Court ruled in State of Karnataka v. Krishnappa that sexual violence violates a woman’s right to privacy and the sanctity of her person in addition to being a dehumanising act. In the same ruling, it was decided that non-consensual sexual activity qualifies as both physical and sexual abuse. The Supreme Court equated the freedom to make decisions about sexual activity with the rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution in the case Suchita Srivastava v. Chandigarh Administration.

The Supreme Court recognised the right to privacy as a fundamental right of all citizens in Justice K.S. Puttuswamy (Retd.) v. Union of India. The ability to make intimate decisions, primarily regarding one’s sexual or procreative nature and decisions in regard to intimate relationships, is reflected by the ability to exercise one’s right to decisional privacy. In each of these rulings, the Supreme Court acknowledged that Article 21 of the Constitution grants all women the fundamental right to refrain from engaging in sexual activity, regardless of their marital status. As a result, article 21 of the UN Charter considers forced sexual cohabitation to be a violation of that right.

Violence against women is defined as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or private life” by the United Nations Declaration on the Elimination of Violence Against Women. The Indian government should make marital rape a crime, the UN Committee on the Elimination of Discrimination Against Women (CEDAW) recommended in 2013. The same was advised by the JS Verma committee, which was established in the wake of widespread protests over the December 16, 2012 gang rape case.

Conclusion

With the advent of separate and independent legal identities for husbands and wives under Indian law, the protection of women is a major focus of contemporary jurisprudence. Therefore, it is past due for the legislature to recognise this legal flaw and repeal Section 375 (Exception 2) of the IPC in order to bring marital rape under the purview of rape laws. –

Abhishek Thakur2nd year B.A., LL.B.(Hons.)School of Law, Lovely Professional University

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