Repeal Exception II of Section 375 of Indian Penal Code

"While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female." Despite the increasing number of cases of marital rape in our country, no statute or regulation defines marital rape.

It should be emphasised that, while "rape" is defined under section 375 of the Indian Penal Code, "marital rape" is yet to be defined, and there has been no reformation of marital rape under Indian law.

It is distressing that the Parliament had hung up their boots, stating that the country was not ready to embrace marital rape as a criminal offence. It is clear that legislators hold a different perspective, believing that marital rape cannot be used in India due to variables such as "degree of education and illiteracy, poverty, social norms, and religious views."

Marital rape is de facto but not de jure in India. While in other nations, the legislative has either criminalised marital rape or the judiciary has actively participated in recognising it as a crime, the judiciary in India appears to be working at cross-purposes.

Regardless of the fact that marital rape is the most widespread and abhorrent type of masochism in Indian society, it is buried behind the iron curtain of marriage. As we already know Domestic violence is a long-standing issue in India, and it has only gotten worse in recent years. Domestic abuse affects roughly 70% of Indian women, according to the National Crime Records Bureau's (NCRB) 'Crime in India' 2019 study. Marital rape is one of the many manifestations of domestic violence.

If we consider rape to be a "genus," then Marital rape is the species that belongs to it. "Marital rape" is defined by the Oxford dictionary as "rape committed by the person to whom the victim is married." Marital rape is any unwanted sexual conduct by a partner or ex-partner committed without the consent or against the will of a female, or consent obtained by force, threat of force, intimidation, or when a person is not in a state of giving consent, such as forcible sexual intercourse by a man with his own wife. The terrible aspect is that "consent" is no longer a viable concept, and this type of domestic violence and sexual assault is still not considered a crime in India and many other countries.

Today, more than 100 countries have passed laws prohibiting marital rape, yet India is one of just 36 countries where the crime remains unpunished. Even though numerous amendments to criminal law have been made to safeguard women, the non-criminalization of marital rape in India violates women's dignity and human rights.

Status of Marital Rape in India

• All forms of sexual assault involving non-consensual contact with a woman are included in the definition of rape codified in Section 375 of the Indian Penal Code (IPC).
• 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 reluctant sexual intercourse between a husband and a wife over the age of fifteen from the definition of "rape" under Section 375, and so safeguards such actions from prosecution.
• After entering into marital intercourse, a wife is presumed to give her husband perpetual consent to have sex with her.
The concept of marital rape in India is the epitome of what we call an “implied consent”. Marriage between a man and a woman here implies that both have consented to sexual intercourse and it cannot be otherwise.

Marital Rape: Against Legal & Constitutional Rights
• Doctrine of Covertures: Marital rape's non-criminalized character dates back to the British era. The theory of blending the woman's identity with that of her husband was heavily influenced by and developed from the practice of marital rape.
o A married woman was not regarded an autonomous legal entity when the IPC was created in the 1860s.
o The marital exception to the IPC's definition of rape was drafted in response to Victorian patriarchal standards that denied men and women equality, barred married women from owning property, and blended husband and wife identities under the "Doctrine of Covertures."

• Violative of Article 14: Marital rape is a violation of the Indian constitution's right to equality, which is enshrined in Article 14.
o The Exception divides women into two groups based on their marital status and immunizes actions perpetrated by men against their wives.
o As a result, the Exception allows married women to be victimised only because of their marital status, while unmarried women are protected from the same offences.

Defeats the spirit of Section 375 of the Indian Penal Code: Section 375 of the Indian Penal Code was enacted to protect women and punish those who commit the inhumane act of rape.

o Exempting spouses from punishment, on the other hand, runs counter to that goal, because the penalties of rape should be the same whether a woman is married or not.

o Moreover, because they are legally and financially bound to their spouses, married women may find it more difficult to flee abusive situations at home.

Violative of Article 21:The rights enshrined in Article 21 include, among other things, the rights to health, privacy, dignity, safe living conditions, and a safe environment, according to the Supreme Court's creative interpretation.

o In State of Karnataka v. Krishnappa, the Supreme Court concluded that, in addition to being a dehumanising act, sexual violence is an unlawful trespass on a woman's right to privacy and sanctity, and that non-consensual sexual intercourse constitutes physical and sexual violence.

o In the case of Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the right to choose sexual activity with Article 21 of the Constitution's rights to personal liberty, privacy, dignity, and bodily integrity.

o 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 right to privacy includes "decisional privacy reflected by an ability to make intimate decisions primarily consisting of one's sexual or procreative nature and decisions in respect of intimate relations."

• The Supreme Court has recognized the right to abstain from sexual activity as a fundamental right conferred by Article 21 of the Constitution for all women, regardless of their marital status, in all of these judgments.

• Another Absurd Law : According to the provision of Section 376of IPC, any person accused of committing rape should be punished with imprisonment of not less than 7 years, that may extend to life or for a term stretching upto 10 years and shall also be liable to fine unless the victim is his own wife, and is not under 15 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.

o Under this section, marital rape be considered as an offence only in one condition, i.e.,when the wife victimised of such a heinous act is below 12 years of age.

o If the age of the wife is between 12 to 15 years and such forceful act or any sexual act is committed by her husband against her will, however, less serious, attracting milder punishment.

o Once, she is above 15 years of age, there is no legal protection provided to her, which is in direct contravention of human rights regulations.

o Loophole to be discussed here is that when the legal age of consent for marriage is 18 then why protection from sexual abuse if married before 18 is given only up to 15 years of age, there is no remedy she has 15 years of age. The Indian Penal Code was amended in 1983 for the criminalisation of spousal rape during the period of judicial separation.

In the case of Independent Thought vs. Union of India and Anr., the Supreme Court of India affirmed that Exception 2 of Section 375 IPC, which refers to a girl child under the age of 18, is liable to be knocked down on certain grounds:

o It is discretionary and in violation of Articles 14, 15, and 21 of the Indian Constitution;

o It is in conflict with the requirements of POCSO, which must take precedence because it is a particular statute for the protection of female children.

Way Forward

• The United Nations Declaration on the Elimination of Violence against Women defines violence against women 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.”

• The JS Verma committee set up in the aftermath of nationwide protests over the December 16, 2012 gang rape case had also recommended the same.

• By removing this law, women will be safer from abusive spouses, can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse.

Conclusion Rape is rape, regardless of the perpetrator's identity or the survivor's age.

A woman who is raped by a stranger has the memory of a horrific incident with her; a woman who is raped by her husband carries the memory of her rapist with her. Even after 73 years of independence, our penal rules, which were passed down from the British, have largely stayed unchanged. However, English laws have been changed, and marital rape was made illegal in 1991. Unfortunately, no Indian government has showed an active interest in resolving this issue thus far. Repealing Exception 2 of Section 375 of the IPC would not, at the very least, absolve the spouse of the charge of rape based on the literal interpretation of Section 375 of the IPC. And the victims (wife) would at least have an opportunity to seek justice, which is currently being denied due to Exception 2 of Section 375 of the Indian Penal Code.

Indian law now affords husbands and wives separate and independent legal identities, and much jurisprudence in the modern era is explicitly concerned with the protection of women. Therefore, it is high time that the legislature should take cognizance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception 2) of IPC.

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