Marital Rape, Not a crime in India

Domestic violence is a long-standing issue in India, and it has only become worse in recent years. Marital rape or compelling your spouse to have sex without their consent is an unfair but frequent technique to humiliate and disempower women. Marital rape has already been outlawed in over 100 nations, but India remains one of just 32 countries where it is still not criminalized. Even though numerous legislative changes have been made in criminal law to safeguard women, the non-criminalization of marital rape in India harms women’s dignity and human rights.

Status of Marital Rape In India

  • Rape is defined in Section 375 of the Indian Penal Code (IPC) as any type of sexual assault involving 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 marital intercourse, a woman is believed to give her husband everlasting agreement to have sex with her.
  • In India, the notion of marital rape is the essence 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 Against Law

  • Violation of Article 14: Marital rape breaches Article 14 of the Indian constitution’s guarantee of equality.
  • 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 actions.
  • Violation of Article 21: According to the Supreme Court’s innovative interpretation, the rights contained 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 degrading act, is an unconstitutional 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 linked 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.

Recent order in the case Sushant Jyotivardhan Jadhav and Ors. vs. The State of Maharashtra, session court in marital rape case observes that because the man was her spouse, his actions could not be considered criminal. The court noted that while the little girl’s paralysis was “unfortunate,” the husband and his entire family could not be held liable.

Considering this, Additional Sessions Judge Sanjashree Gharat granted anticipatory bail to a man and his family in a domestic abuse case under I.P.C. Sections 498-A, 323, 504, 506(II) r/w 34.

In dismissing a husband’s appeal against divorce, a division bench of the Kerala High Court said that considering a wife’s body as something owned to the husband and engaging in sexual actions against her consent amounts to marital rape. “The right to respect for his or her physical and mental integrity includes bodily integrity; any disrespect or violation of bodily integrity is a breach of individual autonomy,” the bench stated in its July 30 ruling.

“Merely that the law does not recognise marital rape under penal law does not preclude the court from recognising it as a form of cruelty and granting divorce.” As a result, we believe that marital rape is a positive thing. The right to privacy includes “decisional privacy expressed by the capacity to make personal decisions principally comprising of one’s sexual or procreative nature and decisions regarding intimate interactions.”

The Supreme Court has acknowledged the right of all women, regardless of marital status, to refrain from sexual activity as a basic right granted by Article 21 of the Constitution in all these decisions. As a result, forced sexual cohabitation is a breach of Article 21’s basic right.

Rights that Substitutes Marital Rape in present

  1. Section 498(A): Any willful behaviour that is likely to lead a female to engage in suicide or to cause serious damage to a woman’s life, limb or health (whether mental or physical) or harassment where such harassment aims to persuade her and any person in connection with her to comply with any illegitimate requirement for property or valuable security or is caused by default.
  2. Section 354(A): Physical contact and approaches including undesired or sexual openness shall be guilty of offences of sexual harassment or of demand or solicitation for sexual favours displaying pornography in contravention of the will of women. Every person who commits the offence described in section will be punished for a term of three years, or with a fine, or both, with a harsh imprisonment.

Husbands and wives today have separate and independent legal identities under Indian law, and much jurisprudence in the contemporary age is expressly focused on the protection of women. As a result, it is past time for the legislature to address this legal flaw and bring marital rape under the ambit of rape legislation by repealing Section 375 (Exception 2) of the IPC. If Spousal Rape is recognised in any form, chances are it will be used to harass husbands, and there may be an increase in frivolous and vexatious lawsuits. India has its own set of issues that are impediments to criminalising marital rape. This procedure will need widespread social agreement. Aside from judicial awakening, we must first raise public consciousness. There are cases of domestic violence, but when there are episodes of sexual assault and cruelty, there should be an awareness campaign carried out by the relevant authorities, with the goal of informing individuals of their rights and obligations. It is just as essential to educate boys and men to see women as valued partners in life, in society and peace as to safeguard human rights for women.

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