BA LLB (1ST YEAR)
ASIAN LAW COLLEGE
The article gives an insight into the origin of rape laws, the notion that initially influenced the concept and legislative view of marital rape, how marriage is used as bait to overcome the liability of certain actions. The article also delves into the fact that non- criminalization of the act violates the rights offered in the constitution. Moreover, it highlights sections of the Indian Penal Code that can serve as solid grounds to criminalize marital rape.
a non-criminalized crime, stemmed from the “outdated notion that a wife is no more than a subservient chattel of her husband” based on Victorian patriarchal norms prevalent during British colonial rule in the 19th century. Under the doctrine of coverture, marital rape was considered an impossible term, believing that a man cannot rape his wife as she was his property. Rape, even when considered a crime, was considered a property crime against a husband, not against a woman’s right to self-determination.
In English customs, “bride capture” was thought to be stealing a father’s property by raping his daughter, giving origin to rape laws. These laws were created to “protect the property interests men had in their women and not to protect women themselves”. This concept of women as property pervades current marital rape ideology and laws throughout the globe. Traditionally, rape was considered a crime outside marriage but with change in social views and international condemnation of sexual violence in marriage, courts started applying the same view of rape statute to sexual violence in marriage. Most countries, today, have criminalized marital rape. But India is one of the thirty-six countries which still do not consider marital rape a crime. In 1986, the European Parliament’s resolution called for the criminalization of marital rape, followed by similar actions by many other countries.
Violence against women has reached alarming heights.
From Sushant Jyotivardhan Jadhav Vs State of Maharashtra to the conditions of Afghanistan, most violence we see today has taken place in name of marriage. Marriage has become a loophole to get away with crime and criminal liability after brutalizing women.
MARRIAGE USED AS A LOOPHOLE
Rape before marriage-
Marriage has become a mere medium to get away with crimes like rape and violence. Punishment of a rapist is reduced or even called off if he agrees to marry the victim. This never really turns out to be good for the victim. The more they would want to forget their trauma, the more it makes them experience it over and over again. Making them see their nightmare’s face every day. Most victims even end up dead as a result of violence and loath that the aggressors hold against them. All it does is incentivizing using marriage as a loophole.
Marriage before Rape-
Moreover, not criminalizing marital rape makes it a foundation for divorce. Making it easy for a man, no more interested in the relationship, to end the relationship by immoral or wrong means in a seemingly legal manner, leaving the victim traumatized and devastated with no stone left to turn. All one can do is to apply for anticipatory bails, the result of which might not even be in favor of the victim. The aggressor might face civil liability and be all free to carry on with their life, at the cost of another’s life. Marriage doesn’t make a woman give up her right to say “NO”.
Non-criminalization of marital rape: A Violation-
Courts still equivocate their views on marital rape. In Independent Thought versus Union of India, the court refused to get into the question of marital rape while examining an exception to Section 375 of the Indian Penal Code. On one side, where our courts are reluctant on giving clear views on the matter, the European Commission of Human Rights in C.R. v. UK had concluded that “a rapist remains a rapist regardless of his relationship with the victim”.
Marital rape eviscerates the core foundation of rights offered by the constitution to
Violation of Article 14– Article 14 of the Indian Constitution ensures that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Non-criminalization of marital rape violates the very article by discriminating victims based on their relation to the accused. Inability to criminalize marital rape is an example of how an independent woman is treated differently from a married one, in the eyes of law. Women were not considered an independent legal entity, back when IPC was drafted. Women were not given individual rights, influenced by the doctrine of merging the identity of a woman to a man after marriage. The world, since then, has been influenced by changes and revolutions. The legal system is much more developed and expanded. Women now are given rights to possession of ancestral property, under Hindu Succession (Amendment) Act, 2005, which was nowhere in sight during the period when IPC was drafted. Today, the lawconsiders a married couple as two separate individuals with their rights. In Budhan Choudhary v. State of Bihar and State of West Bengal v. Anwar Ali Sarkar, the Supreme Court announced that any classification under Article 14 of the Indian Constitution is subject to a reasonableness test that can be passed only if the classification has some rational progression to the objective that the act seeks to achieve. Because there exists no rational nexus between the classification created by the Exception provided in Section 375 of IPC and therefore, the underlying objective of the Act, it doesn’t satisfy the test of reasonableness, thus violating Article 14 of the Indian Constitution.
Violation of Article 21– Article 21 states that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” Rights of life and personal liberty include the rights to health, privacy, dignity, safe living conditions, and a safe environment. In Suchita Srivastava v. Chandigarh Administration, the Supreme Court paired the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity falls under Article 21 of the Constitution. In Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right of all citizens and held that the right to privacy includes “decisional privacy reflected by a capability to form intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.” The judgment did not discriminate the right to privacy between married and unmarried women. Thus, the Supreme Court has recognized the right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental right conferred by Article 21 of the Constitution.
Article 51(A) (e)- Stands to promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women. The marital status of a woman is not considered as a basis of discrimination in the article. Any act under the article that degrades a woman’s dignity is an offense, providing a base to criminalize marital rape.
Sections relating to sexual assault that can provide solid grounds to criminalize marital rape-
Section 354 of IPC– The law makes it a criminal offense to outrage a woman’s modesty. Non- consensual intercourse is a use of force against a woman, undermining her soul and dignity, rendering her to exist as a mere corpse. Independent of her marital status, a woman owns her rights to dignity and modesty, making a strong base to make marital rape an offense.
Section 498A of IPC– The section considers any cruelty or torture (mental or physical) against a married woman, by her husband or relatives, an offense. Rape is both mental and physical cruelty.
Section 377 of IPC– The section states, whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished. In Nimeshbhai Bharatbhai Desai vs the State of Gujarat, the Gujarat High Court condemned marital rape and believed that this was a clear case where the accused had endangered the modesty of his wife.
Even in traditional manner, where marital rape is an impossible term, criminalizing marital rape is a necessity because consent to intimate relations is implied by consent to marriage. But in a country like India, where arranged marriage is a prevalent concept in marriage, most marriages are not a result of free consent. Most consents are surrendered because of pressure from parents, family, or society. Many marriages are a result of expectations, means of procreation, coercion, or greed for wealth or property. Therefore, resulting in a relation formed without free consent, indication no consent to intimate relationships as the marriage itself is not a result of free consent rather influence.
The fact that marital rape is a moral wrong is a plausible fact known by both men and women, they just choose to ignore or avoid the acknowledgment. Making it a criminal offense would stop people from using marriage as a loophole in a legal structure. The only problem in criminalizing marital rape is the conscience of society. Marital rape is difficult to prove because, according to society, consent is obvious in a relationship. We fail to see the boundaries and rights of the individual. The immunity provided by the legislation to a man forcing his wife for a sexual relation accelerates one’s intents of domestic and sexual abuse. The act has already been criminalized by foreign legislation and not criminalizing marital rape allows men and women to believe that wife rape is acceptable.