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Does a woman or man lose their degree of sexual autonomy after marriage? Hon’ble Justice Dhananjaya Y. Chandrachud answered this debatable question in the negative.
Respect is one of the foundation stones upon which the institution of marriage is built. The wedlock evokes an implied value of respecting the choices, individuality, and decisions of the spouse.
The husband and wife must ensure that the way they accept each other’s approval, they must also agree with their disagreement. And understand that a ‘NO’ is a clear and strong denial.
How pervasive is rape?
Rape is usually understood as unwanted, coerced or non-consensual sexual intercourse. Almost every day, women in our country fall prey to the insatiable desire for sex of men. Despite several protections, they are subjected to offences like domestic violence and sexual exploitation. Among various such problems, lies the unheeded issue of ‘marital rape’.
In ancient India, marital rape was not even accepted as an issue disdaining women. The primary reason behind such thinking is the patriarchal and male-dominated framework of Indian society. The portrayal of a woman as merely a property and a chattel of her husband is consistent since time immemorial.
Having sex with the wife is considered to be a manifested right of husband after entering into marital relations, which the former cannot retract. Even today, marriage is construed as an irrevocable and perpetual consent to sex.
It is visualised as a license to the men to go to any dangerous extent and physically exploit their wives. Many concur to the notion that a wife is duty bound to surrender to the desire and sexual whims of her husband without any complain.
Disappointingly, a married woman above the age of majority finds nothing to her rescue. In other words, law has permitted the husband to rape her wife without any intrusion by the State. It would be no wrong if it is said that marriage assigns all the rights of a wife to her husband and renders her helpless.
According to the dictum of Chief Justice Sir Matthew Hale, a husband cannot be convicted of raping his own wife on the sole reasoning that she gives up her body to the husband at the time of marriage. This principle was considered as an underlying claim for the exemption in case of marital rape.
It must be noted that the rape by husband is more brutal than rape by a stranger and its ignorance is a serious breach of a person’s fundamental right to life and personal liberty.
It’s vital that our legislators pay instant attention to the realities of sexual abuse. The protection of institution of marriage cannot be a valid defence to contravene the fundamental right of a woman to live with dignity and bodily integrity.
What is the provision in IPC regarding marital rape?
The sixth description given to the definition of rape under Section 375 of Indian Penal Code clearly states that the consent of a girl below the age of 18 years is immaterial and the sexual intercourse with her comes under the umbrella of rape.
Prior to the decision of Supreme Court in Independent Thoughts vs Union of India , exception 2 to the same section stated that “the sexual acts by a man with his wife, the wife not being under 15 years of age, is not rape.” But in this case, the Apex Court of India, in order to harmonise Indian Penal Code, Protection of Children from Sexual Offences Act (POCSO), Juvenile Justice (Care and Protection of Children) Act and Protection of Women from Domestic Violence Act, disapproved the distinction between an unmarried and a married girl.
The judges were of the view that a girl child remains a child irrespective of her marital status .When the consenting age has been fixed to 18 years; being married carves out no justification for the exception. The Honourable Court thus held that Exception 2 to Section 375 must now be meaningfully read as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape .”
Even as the decision in the aforementioned case harmonised the laws safeguarding the rights of minor girls, the question to protect married women above the age of 18 against sexual exploitation, remains wide open.
Several attempts have been made by the Law Commission of India and various committees in this direction, but all in vain. As the legislators of our country, are only concerned about the institution of marriage and least attentive to the brutal circumstances of marital rape which a married woman goes through.
What are the constitutional safeguards against marital rape?
Although, marital rape is not criminalized in India, the Constitution of India provides protection against the flaws that obstruct women empowerment. The Indian Constitution grants us an all-encompassing right as Article 21.
The judicial interpretation of years has expanded the scope of the article and right to live with human dignity is now within the purview of this provision. The heinous act of rape in marriages evidently contravenes the right to live with dignity and to this effect, it can be said that the exception provided under Section 375 of the Indian Penal Code, 1860 stands unwarranted.
Also, the right to privacy has aroused as a recent judicial development where the Apex Court observed that no individual can be subjected to intrusion to their privacy and personal space.
In the celebrated case of Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court with the ratio of 9:0 upheld the right to privacy as an inherent and integral part of Article 21. When interpreted in the context of marital rape, a wife is entitled to right to sexual privacy. Hence, no one can violate her right and invade into her privacy against her wish.
Article 14 of Indian Constitution guarantees the fundamental right where under “the State shall not deny any person equality before the law or equal protection of the laws within the territory of India.” This article, therefore acts as a custodian against discrimination by the State.
But the exception under Section 375 of the Indian Penal Code discriminates with a married woman and denies her the protection from rape. Thus, it is submitted that the exception is not a reasonable classification and therefore, violates Article 14 of the Constitution.
Similarly, Article 15(1) says that “the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, and place of birth or any of them.” However, the exception to Section 375 assumes non-withdrawable consent of married women to sex.
The assumption strengthens several gender stereotypes which subordinates women in the society and hence, is violative of Article 15 of the Constitution. The aforesaid drawbacks in the legal system of the country must be eradicated to ensure equal justice to married woman against mental and physical abuse faced by them.
What is the constructive stand of judiciary?
While the Legislature is in the process of finding a possible solution to this widespread problem, the Courts are playing a proactive role in ensuring a balance between the criminality of the act and subsequent misuse of the laws saving married women from sexual assault.
The Hon’ble Supreme Court in the case of Suchita Srivastava v. Chandigarh Administration explicitly stated, “A woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ under Article 21 and that this choice can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected.”
At various instances, the Apex Court has taken cognizance of the views eununciated by Justice (Retd.) JS Verma Committee, where it was concluded that the rapist remains the same regardless of his relation with the victim.
Moreover, in a judgement that garnered a lot of appreciation, Honourable Mr. Justice J.B. Pardiwala of Gujarat HC expressed concern on the limitations of the laws. His take on the criminalization was clear as he advocated for the outlawing of the non-consensual sex in marriages.
And, preached that inhumane treatment with women is absolutely intolerable. Evidently, the Indian Courts affirm that women are no properties of their spouse and are rightfully entitled to equivalent treatment socially as well as legally.
The institution of marriage is definitely a bond of trust, respect ,and love. Procreation can be the primary purpose of marriage but the use of violence is absolutely unacceptable. The wife’s individuality and choices must be honoured and the line drawn between rapes within marriages and outside must be erased at earliest.
In India, long drawn debate of marital rape has ironically, not received much of deserved attention from the lawmakers. The Parliamentarians are of the view that marital rape could not be criminalized in our country as marriages are sacrosanct. And change or reformation in this system can destroy the sacred institution of marriage.
Based on the absurd logic that criminalizing the act will attack the sanctity of marriage and it might be used as a weapon by wife to attack the innocent husband, the State has been ignoring and violating the basic human rights of married women. This visibly indicates the careless and non-intervening approach of Legislature in family sphere.
But the point they usually tend to forget is that the culture and tradition of India worships women as deities. They must soon realise that if the paramountcy of the Constitution is to be maintained, the honor and worth of womenfolk must be vindicated. If this celebrated heritage is to be reinstated, women must find a place of safety and reverence in the society.
Nevertheless, the pragmatic viewpoint of Indian Judiciary in sundry cases is admired. The observations made by the Apex Court of India in support of the women can be perceived as the silver lining amidst, dark clouds of cruelty and discrimination.
-This article is brought to you in collaboration with Vaidehi Maharishi from S.S. Jain Subodh Law College, Jaipur.