MARITAL RAPE- A FEATURE OF PATRIARCHAL SOCIETY
Jan. 29, 2020 • Madhav Gawri
Introduction
Screams and cries of the ladies do not attract anyone's attention when the reason behind is her husband. Marital rape, a serious wrong against women, is still not punishable. People are becoming vigilant day by day to the issues pertaining to women and everyone from political leaders to a common man takes an active part in the discussions, which in any way ensure equality between men and women. There have been several steps taken by the judiciary, which are decreasing discrimination on the basis of sex. In Shayara Bano v. Union of India[1], the Supreme Court of India observed that the practice of talaq-e-biddat which gives right to Muslim husbands to give talaq to their wives is unconstitutional. Similarly, decriminalization of adultery in Joseph Shine v. Union of India[2] and declaring the practice of barring entry of women in Sabarimala temple in Young Lawyers Association and Ors. v. Union of India and Ors.[3] are the instances that Judiciary is playing its role efficiently, but in the absence of any statue in favour of criminalization of marital rape, the judiciary is helpless to do anything.
Marital Rape is not punishable under IPC
Marital rape, is still not categorized as an offence under Indian Penal Code. Section 375 of IPC lays down the acts which are considered as 'rape,' but the proviso to this section very clearly excludes marital rape from the offence of rape. The proviso to this section reads as follows:
‘Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape’
It is explicit from this proviso that if a man engages in sexual intercourse with his own wife even without her consent, then it is totally justifiable under law. The only exception to this is that if the girl is below 15 years of age, then it would amount to rape and will be punishable. But what's the logic behind this? Do women of age group 15 years or above lose their right to give consent? Or this patriarchal society takes her right and replace it with the power of their husbands to overpower her?
Marital Rape violates Fundamental Rights
Under the Constitution of India, Article 14 gives right to equality and equal protection of laws to everyone. It says:
‘The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’
Having sexual intercourse with the wife without her consent is the infringement of the rule of equality as it reflects that wife has no say in the matter, and it also promotes orthodox thinking, that she is the property of her husband who has to obey all his orders. Marital rape cannot even fall under the exceptional rule Article 14 i.e., principle of reasonable differentia, classifies rape into two categories of statutory rape, and marital rape, which is totally irrational and not providing punishment to the person committing marital rape is against the objective of fundamental right enshrined under this article. Article 21 of the Constitution of India provides right to life and personal liberty, and it reads as follows:
‘No person shall be deprived of his life or personal liberty except according to a procedure established by law.’
In this manner, marital rape becomes an exception to this principle, and the same is violative of a spouse's entitlement to live with human dignity. Any law which damages ladies' entitlement to live with dignity and further gives the husband the right to drive his wife to have sexual intercourse without her will is along unlawful lines.[4] Further, in Justice K S Puttaswamy v Union of India [5], the court observed that the Right of Privacy under Article 21 incorporates a right to be allowed to sit unbothered and not aggravated. Any type of intense sex damages the power of protection and sexual security. It is presented that the teaching of marital exclusion to rape damages a wedded lady's entitlement to protection by driving her to go into a sexual relationship without wanting to.[6]
Conclusion
The JS Verma Committee took note of the fact that the exemption of marital rape, which stems from the idea that a wife is deemed to have consented at the time of the marriage to have sexual intercourse with her husband at his whim and such a consent cannot be revoked by her, has been withdrawn in England and other major jurisdictions, and therefore the committee has made recommendations on removing marital rape as exception under Indian Penal Code.[7]
There can be certain difficulties in implementation of laws against marital rape, but once the laws will be in favour of punishment for marital rape, and people would become aware of them, they would understand the pains and physical and mental torture they used to inflict on their female partners and it's criminalization can act as a shield for women and limits for some lusty men.
[Author: Ritika Sharma, is pursuing B.com LLB from UILS, Panjab University, Chandigarh.]
[1] (2017) 9 SCC 1
[4] Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922
[5] (2017) 10 SCC 1
[6] Sangamithra logananthan, Marital Rape, Legal Service India (Jan. 27, 2020, 11.16 PM) http://www.legalservicesindia.com/article/2369/Marital-Rape.html
[7] PSA PILLAI, CRIMINAL LAW 870 (14th ed. 2019)