DJN Blogs

Sivapuram V.L.Thejaswini, from Alliance University Bangalore.
Date: 25.04.2021
MARITAL RAPE: STIGMA FOR INDIAN SOCIETY
1. Abstract :
Rape is the term
derived from “rapere” which means to seize. It is considered to be one
of the most heinous crime in the society. Section 375 of the Indian Penal
Code (IPC) defines Rape. It is defined as the sexual intercourse with a
woman against her consent, will (or) by putting her under the fear of
death/hurt[1].
Marital rape
refers to undesirable sexual intercourse by a man with his own wife by unlawful
force, threat of force (or) physical violence (or) when she is incompetent to
give consent to such sexual intercourse. It is considered to be a
non-consensual act of violence by husband against the wife where she is abused
both physically & mentally.
In this paper, I
would like to look into the concept of Marital rape prevailing in the society
that leads to stigma for the Indian society.
2. Marital
Rape :
In Indian
scenario, marital rape is excluded from the ambit of rape. However exception
2 of Section 375 made it clear that,
“Sexual
intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape[2]”.
From the above exception
it can be seen that sexual intercourse by a man with his own wife is rape when
she is below 15 years of age regardless of the fact whether it is done
with (or) without her consent. Such a kind of restriction is very important to
restrain men from taking advantage of their marital rights prematurely. However
a man cannot be made liable for raping his own wife when she is above 15
years of age.
Thus, this
exception tends to be a debatable aspect as it is violative of Article 14 (equality
before the law) of the Indian Constitution and tends to discriminate against
women.
In Bishnudayal
v. State of Bihar[3], where
the victim, a girl of 13 (or) 14 years of age who was sent by her father
to accompany the relatives of his elder daughter’s husband to look after her
elder sister for some time was forcibly married to the appellant and had sexual
intercourse with her. The accused was here held liable for rape under Section
376 of IPC.
Under Section
376B of IPC sexual intercourse with one’s own wife without her consent
under a decree of judicial separation is punishable with 2 to 7 years of
imprisonment.
In Independent
Thought v. Union of India[4], the Honorable
Supreme Court on 11th October, 2017 held that exception 2
to Section 375 so far relates to the girl child below 15 years of
age is liable to be struck down on the following grounds;
ü
it
is arbitrary, changeable, unusual & violative of the rights of girl child
and not fair, just and reasonable under ‘Article 14, 15 & 21’ of the
Constitution of India.
ü
it
is discriminatory & violative of Article 14 of the Constitution of
India.
ü it is inconsistent with the provisions of POCSO
Act(Protection of Children from Sexual Offences), 2012 which must
prevail.
Therefore exception
2 of Section 375 of IPC is read as –
“Sexual intercourse (or)
sexual acts by a man with his own wife, the wife not being 18 years, is
not rape”.
It is however made
clear that this judgement will have prospective effect. It is also clarified
that Section 198(6) of CrPC will apply to cases of rape of “wives” below
18 years, and cognizance can be taken only in accordance with the
provisions of Section 198(6) of the Code.
Under the
Indian Penal Code, there are some instances where husband can be criminally
prosecuted for an offence of marital rape;
–
When
the wife is between 12-15 years of age, then the offence is punishable
with imprisonment up to 2 years (or) fine (or) both[5].
–
When
the wife is below 12 years of age, offence punishable with imprisonment
of either description for a term which shall not be less than 7 years but
which may extend to life (or) for a term extending up to 10 years and
shall also be liable to fine[6].
–
Rape
of a judicially separated wife, offence punishable with imprisonment up to 2
years & fine[7].
–
Rape
of a wife above 15 years in age is not punishable[8].
3. Protection
of Women from Domestic Violence Act, 2005 :
This Act did not
however consider marital rape as a crime, but as a form of domestic violence[9]. Under this Act, if a marital rape has been committed
on a woman then she can obtain an order of judicial separation from the court.
4.
Constitutional point of view :
4.1. Equal
protection of the laws –
Article 14 guarantees a fundamental right of equality before the
law & equal protection of laws to every citizen of India[10]. This is an irony where Section 375 of IPC makes
a classification in terms of an exemption that does not regard a forceful
sexual intercourse within a marriage as
rape.
In State of
West Bengal v. Anwar Ali Sarkar, the two requisites of a valid
classification were laid down by the Supreme Court are;
–
the
classification must be founded on an intelligible differentia which
distinguishes that are grouped together from others; and
–
the
differentia must have a rational relation to the object sought to be achieved
by the legislation[11].
4.2. Right to
Life & Personal liberty –
Article 21 of the Indian Constitution enshrines the right to life
& personal liberty[12].
Marital rape violates the right to privacy, right to bodily self-determination
& right to good health, which are all considered as an integral part of the
right to life & personal liberty at various points of time.
4.3. Right to
live with Human Dignity –
Right to live with
human dignity recognizes the autonomy of an individual which is inherent under Article
21.
The concept of
right to life under Article 21 of the Constitution includes right to
live with human dignity that includes the bare necessities of life such as
nutrition, clothing & shelter etc., was held in Francis Corallie Muin
v. Union Territory of Delhi[13].
In The
Chairman, Railway Board v. Chandrima Das, it was held by the Supreme
Court that the offence of rape violates right to life & the right to live
with human dignity of the victim of the crime of rape[14].
4.4. Right to
Sexual Privacy –
The Supreme Court
has recognized the right to privacy which is constitutionally protected under
Article 21 in a series of cases like Kharak Singh v. State of U.P[15], Govind v. State of Madhya Pradesh[16], Neera Mathur v. LIC[17]. In State of Maharashtra v. Madhkar Narayan[18], it was held that every woman was entitled to sexual
privacy & it was not open to for any and every person to violate her
privacy as and when he pleased.
4.5. Right to
Good Health –
This right is a
part of Right to life under Article 21. It has been held in some
judgements like CESC ltd v. Subhash Chandra[19], Regional Director, ESI Corporation v. Francis
de Costa[20]. Because marital rape may cause serious psychological & physical harm
& may sometimes lead to the transmission of a Sexually Transmitted Disease
(STD) to such a victim of rape.
5. Landmark
Judgements :
In Queen
Empress v. Haree Mythee[21], it was observed that in case of married women, the law of rape does not
apply between husband & wife after the age of 15 years even if the
wife is over 15 years, the husband has no right to disregard her
physical safety.
To the contrary in
Sree Kumar v. Pearly Karun[22], here there was a ongoing dispute on divorce between the parties.
Thereafter, a settlement was reached between the husband & wife and parties
agreed to continue to reside together. The wife stayed with the husband, during
which she alleged that she was subject to sexual intercourse by her husband
against her will & consent. Hence, husband was not guilty of raping his
wife though he was de facto guilty of having done so.
6. Conclusion
:
The violent & non-consensual
acts of husband may entitle wife to bring action for criminal assault but what
is more important is that there is a need for liability in our penal laws with
respect to marital rape.
There are many
Acts that are made for the protection of women, but even the provisions in such
Acts do not penalize such kind of offences. And it’s high time where there is a
necessity to penalize such offences to safeguard the married women in our
society.
There is a dire
need to acknowledge the women of our society as human beings to avoid the
social stigma prevailing in the society. As the current practices in our
society negates the self- worth of a woman.
[1] Section 375
of IPC, 1860
[2] Exception
to Section 375 of IPC, 1860
[5] Indian Penal Code (45 of 1860),
Section 376(1)
[6] Ibid
[7] Indian Penal Code (45 of 1860),
Section 376A.
[8] Indian Penal Code (45 of 1860),
Exception to Section 375
[9] Section 3, Explanation 1(ii) of
‘Protection of Women from Domestic Violence Act, 2005.
[10] The Constitution of India, Article
14
[11] AIR 1952 SC 75, 80.
[12] The Constitution of India, Article
21
[13] AIR 1981 SC 802
[14] AIR 2000 SC 988
[15] AIR 1963 SC 1295
[16] AIR 1975 SC 1378
[17] (1992) 1 SCC 286
[18] AIR 1991 SC 207
[19] (1992) 1 SCC 441
[20] 1993 Supp (4) SCC 100
[21] [(1891) ILR 18 Cal. 49]
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