Indian
Criminal law comes with a several loopholes, but gradually as era changes
they get reformed. Marital rape needs to be criminalized as it’s one of the
major problems of our society. Only one among three men admit their act,
whereas in every 3 seconds an Indian women is been raped by her husband.
It’s an utter shame for us that our Criminal law still can’t punish any husband
of an act of rapping his own wife.
Definition
under Sec.375 of IPC starts by criminalizing all forms of sexual assault with a
woman. However, Exception-2 of Sec.375 exempts unwilling sexual intercourse by
a man with his own wife over 15yrs of age. This provision embarks power of
immunity to a husband from such a ruthless act. Currently in the eyes of our
criminal law, consent of a wife before performing sexual intercourse by her
husband is immaterial. Well looking
around the globe unwilling sexual intercourse between ‘married couple’ is considered
as criminal offence, but our India remains among those 36 countries who don’t
consider marital rape as a crime.
After
reading this exception my undivided attention seeks by fact that, how can same
law provides 18yrs a legal age to get married, while providing protection from
sexual assault, only to those who are up to 16yrs age? Law makers might be thinking that after 16yr
a girl will turn into a superwoman and she can protect herself even from the
beast.
The very
definition of rape demands change and result of which our supreme court and
other high courts are flooded with various writ petitions, challenging the
constitutionality of Exception.2 of Sec.375. SC in his recent judgment of Independent
Thought vs Union Of India on 11 October, 2017 Criminalizes the
unwilling sexual assault with a wife between 15 and 18yrs of age.
Historical
Background
Tracing
back to the 1860, when IPC was drafted, there was not any independent legal
entity of married women. In fact, they were just like any movable property of
her husband. As we all know, rights comes with remedies so the opposite. Not
having any independent legal entity snatches the right to file a complaint
against anyone.
The
concept of non-criminalization of marital rape is rooted in Victorian era. In
19th century India was a British colony. Indian criminal laws
drafted during this era were shadowed by Victorian norms & English
law. This marital exception was designed
under Victorian era, where men and women are never considered as equals, wife
cannot own any property and merges the identities of the couples under the
‘Doctrine of Coverture’.
In the
current scenario, Criminal law has stepped up and removed the shadow of various
parts, by providing independent legal entities to the couples. In modern era,
women with the assistance of various remedies became vocal about their rights. These
assistances are evident in plethora of legislatives intended to protect women
from harassment and violence, including “Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act” and “The Protection of
Women from Domestic Violence Act”.
Immunity
to Marital rape violates our constitution
Art.14 Equality before Law
It
provides 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. On one hand
constitution is providing equality to all and on the other criminal law is not
even providing legal entity to the female victims who have been raped by their
own husbands.
Insofar,
exception-2 is clearly violating Art.14 by discriminating among married and
unmarried women in providing protection from rape and harassment. In case of State of west Bengal vs. Anwar
Ali Sarkar, SC held that any classification under this article is
subject to a reasonable test that can be passed only if there has a reasonable
nexus to the objective. But Exception-2 instead of protecting women by
punishing the man who performed such inhumane activity provides immunity from
punishment which is contrary to that objective.
Exempting
marital rape from punishment encourages husband to forcefully commit rape with
their wives, as they know there act is not penalized under law, they can’t be
put behind the bars. As, reasonable nexus has not been deciphered between the
exception and test of reasonableness, it violates art.14.
Art.21 Protection of Life and
Personal Liberty
It says
that, No person shall be denied of his life and personal liberty except
according to the procedure established by law. There are various
interpretations made by Supreme Court, which ensures that Art.21 includes right
to privacy, dignity, health, safe environment.
In case
of The State of Karnataka v.
Krishnappa, SC held that
“sexual violence apart from being a dehumanizing act is an unlawful intrusion
of the right to privacy and sanctity of a female.” It has also been held that
non-consensual sexual intercourse comes under physical and sexual
violence. Further in case of Suchita Srivastava v. Chandigarh
Administration Sc held that
right to make choices related to sexual activities comes under the ambit of
rights to personal liberty, privacy, dignity, and bodily integrity under
Article 21 of the Constitution.
In the
Latest judgment made by SC in Justice
K.S. Puttuswamy (Retd.) v. Union of India held that the right to privacy
as a fundamental right of all citizens and held that 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’. Forced sexual cohabitation is a violation of
that fundamental right.
Marital
rape violates art.21 as ‘right to life’ is not merely right to exist, instead
is to live with dignity. But non-criminalization of this act fails to deter
husbands from engaging in non-consensual sexual assaults with their wives,
adversely affects the physical and mental health of a woman, restraints their
souls to live life with dignity.
Explaining well 👍
ReplyDeleteOne for the topic we all want to talk about! Really well-written.
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