In India, one of the most common and serious issues is violence against women. Women’s status or condition in society is precarious. Rapes, acid attacks, sexual assaults, cruelty, dowry killing, discrimination, and other crimes against women are only a few examples. These crimes are classified as crimes, and the perpetrators are referred to as criminals. However, consider a crime that is just as horrible as these, but the offender is not considered a criminal in the eyes of the law: Marital rape.
In India, domestic violence is deeply rooted and commonly practiced. Domestic violence, defined as any act of physical, sexual, or psychological abuse, or the threat of such abuse, perpetrated against a woman by someone who is intimately connected to her through marriage, family, or acquaintanceship, is universal and has its roots in society’s sociocultural structure. Domestic abuse affects roughly 70% of Indian women, according to the National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019 study. Domestic violence is primarily perpetrated against women by their male partners and relatives. In India, there are several laws that deal specifically with the protection of married women from their husbands and family. Marital rape is one example of a reality of domestic abuse that isn’t even deemed unlawful or a crime. In this scenario, the culprit is not even considered a criminal by the law. Today, marital rape is illegal in more than 100 nations throughout the world, yet it is shocking to learn that India has yet to decriminalise marital rape. Despite the fact that many amendments to the constitution and criminal law exist to protect women, taking no action to prevent marital rapes violates women’s dignity and rights.
Rape is defined in Section 375 of the Indian Penal Code, which includes all forms of sexual abuse and assault against women in India. However, Section 375 of the IPC contains an Exception 2 that states that “sexual intercourse by a man with his wife, if the wife is not under the age of fifteen, is not rape.” In India, this exception protects against marital rapes. In India, it is believed that after entering into a marital relationship, a wife is presumed to give perpetual consent to have sex with her husband. This exception clearly states that if a girl is under the age of 15 and is raped, the crime will be classified as raped regardless of whether she consented to the sexual intercourse or not. However, if a married woman over the age of 15 and under the age of 18 is raped by her husband, the act is not even considered an offence or a crime. This provision violates Indian married women’s modesty and human rights.
Constitutional validity of exception 2 of Section 375 of the Indian Penal Code:
Article 14 of the Indian Constitution addresses equality, stating that “the State shall not deny to any person equality before the law or equal protection under the law within the territory of India.” Discrimination on the basis of religion, race, caste, gender, or place of birth is prohibited.” However, exception 2 violates Article 14, which states that equality for all is guaranteed. It is biased against women who are raped by their husbands. This exemption makes a difference between married and unmarried women. Rape by a stranger has been criminalized and is punishable, but rape by one’s own husband is not punishable under Indian law.
In the year 1860, the Indian Penal Code was drafted. A married woman was not considered an independent and separate legal entity at the time. She was considered her husband’s property and thus did not have the same rights that she does today. As a result, exception 2 is largely a result of the doctrine of merging a married woman’s identity with that of her husband. Article 21 of the Constitution is also violated by exception 2. According to Article 21, “no person shall be denied his life or personal liberty except in accordance with the procedure established by law.” Over the last decade, courts have held that Article 21 includes the right to abstain from sexual intercourse or any other type of sexual activity. If a person is forced to have unwanted or unwilling sexual contact with someone, it is a violation of his or her right to personal liberty.
Sexual violence, in addition to being a demeaning act, is an unlawful encroachment on a female’s right to privacy and sanctity, according to the landmark case of State of Karnataka vs Krishnappa. According to the same judgement, non-consensual sexual intercourse is deemed bodily and sexual violence.
In the case of Suchita Srivastava v. Chandigarh Administration, the Supreme Court connected the right to make sexual activity decisions with the constitutional rights to personal liberty, privacy, dignity, and physical integrity.
The Supreme Court acknowledged the right to privacy as a fundamental right of all people in another important and well-known case, Justice K.S. Puttuswamy (Retd.) v. Union of India. “Decisional privacy” is defined as “the freedom to make private decisions principally involving one’s sexual or procreative nature, as well as decisions regarding intimate relations.”
After looking at all of these situations, we can see why this exception clause is still in place. It infringes on married women’s dignity and right to live. However, failing to declare Section 375 exemption 2 unconstitutional sends a sad message to the entire female society that their consent for sexual encounters is of no significance and that they are treated as property in their husband’s name. As a result, we might conclude that marriage serves as a permission to engage in sexual activity without the wife’s consent.
The belief that criminalizing marital rape will undermine family values is not unique to Indian society; in fact, our former Chief Justice of India, Justice Deepak Mishra, previously stated that making marital rape a crime will lead to anarchy in families. Even our government in India feels that people who attempt to prevent women from being raped by their husbands are following western culture. They believe it is not in our society to raise concerns about marital rape. Unfortunately, many people in our country believe that a wife must always consent to her husband. They believe she is property, but rape is rape, and no age or marital status should be used to justify such heinous crime. It is urgent that this crime be understood and that such an exception clause be repealed. Thus, it is urgent to speak out against this deeply ingrained religious and cultural stereotype of male chauvinistic society and to criminalize marital rape in India in accordance with globalization and changing social values in order to protect, secure, and empower the dignity of women in its fullest sense, as well as to safeguard the truest spirit of the Indian constitution.
1. Indian Penal Code, 1860, § 375, No. 45 of 1860 (India)
2. State of Karnataka vs Krishnappa, (2000) 4 SCC 75.
3. Suchita Srivastava v. Chandigarh Administration, (2008) 14 SCR 989
4. Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161