Why Is Marital Rape Not A Crime In India?
Rape is illegal intercourse without a man’s consent because of bodily urge or risks, or due to deceptive demonstration of the perpetrator. Rape by an outsider is a criminal offence in India under sections 375 and 376 of the Indian Penal Code. Surprisingly, it expressly excludes marital rape from the scope of conviction. Marital rape is sex by a spouse with his better half without her consent or under duress or threat.
The patriarchal system that governs Indian families has always regarded women as unimportant property of their significant other or guardian. As a result, rape was regarded as the theft of ladies and a crime against a spouse or guardian. This belief system has influenced our legislators to disregard the offence of spouse rape by giving it the shield of the spouse’s wedding right, and by doing so, they are silently tolerating those ladies are only a protest of her better half’s sexual satisfaction with no will of her own over her sexuality. This decision has established the ladies’ right to consistency and equity.
Marital rape and laws in India: In India, marital rape is not a crime. In India, marital rape legislation is either non-existent or esoteric, relying on Court interpretation. The exemption clause in Section 375 of the Indian Penal Code (IPC) for rape is: “Sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape.” According to Section 376 of the IPC, which provides punishment for rape, the rapist should be rebuffed with the detainment of either portrayal for a term that may not be under 7 years but rather may extend out to life or for a term that may extend out to 10 years and should likewise be at risk to fine unless the lady raped is his particular spouse and is not under 12 years old, in which case he may be rebuffed with both.
When the wife is between the ages of 12 and 15 years old, the offence is punishable by up to two years in prison, a fine, or both.
When the spouse is under the age of 12, the offence is punishable by detention for a duration that may not be less than 7 years but may extend up to life, or for a term that may extend up to 10 years and should also be subject to a fine. The rape of a judicially separated spouse is punished by imprisonment for up to two years and a fine; the rape of a wife over the age of 15 is not punishable.
The Protection of Women from Domestic Violence Act of 2005, which deems marital rape to be a sort of local violence, was passed in 2005. A woman can seek legal separation from her spouse for marital rape under this Act. Marital rape is unreasonable: it is a woman’s body that is raped, as well as her attachment and trust, which is broken in this way, sending her into instability and dread. Her human rights are surrendered at the sacred place of marriage. However, legislation to protect the rights of victims of marital rape are insufficient and deficient, and the methods used are undesirable.
The essential premise of these “laws” is that agreeing to marry entails agreeing to engage in sexual activity. But does agreeing to participate in sexual activity imply agreeing to be exacted with sexual viciousness? Brutality creates a sense of dread and instability in the lady, causing her to succumb to sex. It is not the same as agreeing to have sex. The distinction between assent and non-assent in contrast is essential to criminal law.
Surprisingly, a woman can protect her right to life and liberty, but not her body, inside the confines of her marriage. Rape’s definition (section 375 of the IPC) should be altered. So long, the major resort for ladies has been Section 498-A of the IPC, dealing with remorselessness, to protect themselves against “unreasonable sexual direct by the spouse.” In any event, there is no standard of measurement or translation for the courts of the terms “perversion” or “unnatural” within the context of spousal interactions. Is it possible to have an unreasonable interest in sex? Isn’t assent a requirement? Is marriage a licence to rape? There is no response because the judges and parliament are silent.
Right to live with human dignity:
The concept of the right to life under Article 21 of the Constitution was stressed in the case of Francis Coralie Muin v. Union Territory of Delhi. According to this case, Article 21 includes the right to live with human dignity and all that goes with it, specifically the minimum necessities of life, such as adequate nutrition, clothing, and shelter over one’s head, as well as facilities for reading, writing, and expressing oneself in various forms, freely moving about, and mixing and mingling with fellow human beings. The right to live with human dignity is one of the most essential components of the right to life that perceives a person’s independence.
In a series of instances, the Supreme Court has ruled that the crime of rape violates the victim’s right to life and the right to live with dignity. The Chairman of the Railway Board v. Chandrima Das is one such case. Rape, according to the Supreme Court, is a crime against society as a whole, not just an offence under the Indian Penal Code. In the case of Bodhisattwa Gautam v. Subhra Chakraborty, the court ruled that rape is less of a sexual offence and more of a display of animosity aimed at corrupting and mortifying the females. In this way, the marital exemption concept violates the spouse’s right to live with dignity. Any law that violates a woman’s right to live with dignity and provides her husband with the authority to force her to have sexual relations against her will is thus illegal.
Sexual Privacy is a legal right.
Right to bodily self-determination: Even though the right to considerable self-assurance is not directly mentioned in the Constitution, such a right exists in the larger system of the right to life and personal liberty. The concept of the right to self-assurance is based on the assumption that the individual is the final authority in things directly related to her/his body or prosperity, and the more private the decision, the more powerful the person’s privilege. The will is the primary maker of his destiny, determining his reality. Sexual relationship is a standout amongst the most personal choices a lady makes for herself. Sex-related decisions are a form of self-expression and self-assurance. If the law attempts to take away the privilege of communicating and rejecting such assent, it denies a lady her guaranteed right to genuine self-assurance. In this way, it is demonstrated that the marital exclusion principle successfully rejects a married woman’s entitlement to substantial self-assurance and interferes with her most personal decision-making.
In-State of Maharashtra vs. Madhukar Narayan Mandikar, the Supreme Court pointed to one aspect of bodily security. What is unfortunate here is that the court has favourably removed the spouse but has not provided her with protection over her own body, yet ladies who have been subjected to rape by strangers have that perfectly fine criminalised but not marital rape. In this case, it was decided that a prostitute has the right to refuse sex if she is unwilling.
The Kerala High Court observed in Sree Kumar vs. Pearly Karun that the offence under Section 376A, IPC will not be drawn in as the spouse is not living independently from her husband under a declaration of partition or any custom or use, regardless of the possibility that she is liable to sex by her better half without her consent and her desire. In this case, the spouse was subjected to sex against her will by her husband when she went to live with him for two days as a result of the two parties’ agreement to resolve their divorce proceedings. As a result, the spouse was found not guilty of raping his wife, even though he had done so.
The judiciary appears to have completely conceded to its benefit that rape inside a marriage is unfeasible or that the shame of a woman’s assault may be averted by marrying the assailant.
The Delhi high continued hearing a batch of petitions challenging the exception to section 375 of the Indian penal code, which exempts forceful sexual intercourse by a man with his wife from the offence of rape. Advocate Karuna Nundy argued before a bench of justice Rajiv Shakdher and Justice C. Hari Shankar that the marital rape exception is archaic, based on an outdated notion of marital relations that has no place in a just, constitutional and criminal order.
Nundy was making rebuttal arguments on behalf of two petitioners namely RIT Foundation and all India democratic women’s association. On this Shankar said that the Supreme Court said judgment had clearly stated that nothing in the judgment shall be an observation to be considered concerning the issue of marital rape. Remarking so, Justice Shankar questioned Nundy that given such an express position, will it be appropriate for the high court to still apply the inversion test and reverse the findings of the apex court.
On the testing of the marital rape exception on the anvil of Article-14, Nundy submitted that according to the classical test of the apex court, merely satisfying the test of intelligible differentia is insufficient. She added that article 14 requires satisfaction of all it’s essential including one an intelligible difference for the distinction and two, the same must have a rational nexus with the object sought to be achieved
On the other hand, additional Solicitor General Chetan Sharma informed the court that the central government was re-looking its stand on the aspect of criminalization of marital rape.
Justice Shakdher said there are only two ways of closing this issue. One is the legislative route and the other is a court decision. There is no third way of closing this issue. You people need to make up your mind whether you need to stick to the position that you have taken in the counter affidavit or you will change it. If you want to change it, you must let us know.
Conclusion: In India, marital rape is not criminalized. It is, without a doubt, a legitimate sort of wrongdoing against women that requires the attention of the authorities. Women who have been raped by their spouses are more vulnerable to other attacks and frequently experience long-term physical and emotional concerns. In this case, marital rape is far more heinous for a woman because she must live with her perpetrator regularly. Because the consequences of marital rape are so severe, there is a pressing need to criminalize the offence of marital rape. Because the consequences of marital rape are so severe, there is clearly a pressing need to criminalize the offence of marital rape. Positive legal change for women is generally taking place in India, but additional steps are required to achieve both legal and social reform, which would result in criminalizing marital rape and changing the attitude toward women in marriage. The Protection of Women from Domestic Violence Act contains numerous loopholes because it does not expressly prohibit marital rape. On the plus side, the passage of a specific law prohibiting domestic violence has paved the path for a law criminalizing marital rape. This obviously reflects a shift in the state’s philosophy, which previously relied on non-interference in the family circle