MARITAL RAPE AND CONSTITUTIONAL MORALITY: TIME FOR LEGAL RECOGNITION
Indian criminal law, despite its constitutional ideals, continues to harbour significant loopholes. Over the years, various reforms have been introduced to address these shortcomings, yet marital rape remains one of the most glaring issues left unaddressed. It is a tragic reflection of our societal and legislative structure that non-consensual sex between a husband and wife is still not recognized as rape under Indian law.
Statistically, only one in three men admits to having raped their wife, and reportedly, an Indian woman is raped by her husband every three seconds. This appalling data calls into question the very essence of justice under our legal system, which, to date, does not criminalize rape by a husband.
The Legal Framework: Section 375 IPC and Its Exception
Section 375 of the Indian Penal Code (IPC) defines rape and criminalizes all forms of non-consensual sexual acts committed against a woman. However, Exception 2 to Section 375 IPC exempts a husband from punishment for having non-consensual intercourse with his wife, provided she is above 15 years of age. This archaic provision grants legal immunity to the husband and treats the wife’s consent as immaterial once she is married.
This raises a fundamental contradiction. The legal age of marriage under Indian law is 18 years, yet protection against sexual assault is withdrawn from a wife once she turns 15. It appears as though lawmakers assumed that a girl transforms into a superwoman after 15, capable of protecting herself—even from marital abuse.
In contrast, most countries across the globe have recognized marital rape as a criminal offence. India, however, remains among the 36 countries that have not yet criminalized this grave violation of bodily autonomy.
Judicial Interpretation and Evolving Jurisprudence
The constitutionality of Exception 2 to Section 375 IPC has been repeatedly challenged before Indian courts. A landmark judgment in this context was the Independent Thought v. Union of India (2017), where the Supreme Court read down the exception to hold that non-consensual sex with a wife between 15 and 18 years of age is rape. Although progressive, the ruling fell short of completely striking down marital rape immunity.
Historical Origins and Legislative Inertia
The roots of this exception lie in the Victorian-era laws imported by British colonizers. During the drafting of the IPC in 1860, women were not considered independent legal entities. Under the doctrine of coverture, a wife’s identity merged with her husband's, reducing her to the status of movable property. Hence, she had no legal right to complain against her husband's acts.
Though Indian law has evolved significantly—granting women equal legal status and protections—the marital rape exemption remains a colonial relic. Contemporary Indian laws such as the Protection of Women from Domestic Violence Act, 2005, and the Sexual Harassment of Women at Workplace Act, 2013, highlight the state’s obligation to protect women from abuse. Yet, these protections fall short when it comes to marital rape.
Violation of Fundamental Rights
1. Article 14 – Right to Equality
Article 14 of the Constitution guarantees equality before the law and equal protection of the laws. Exception 2 to Section 375 violates this principle by creating an arbitrary classification between married and unmarried women—offering protection to the latter while denying it to the former.
In State of West Bengal v. Anwar Ali Sarkar, the Supreme Court held that any classification under Article 14 must satisfy the test of reasonableness and have a rational nexus to the objective sought to be achieved. The marital rape exception does not meet this test. Rather than protecting women, it encourages impunity by legally sanctioning an act that would otherwise be punishable if committed outside marriage.
2. Article 21 – Right to Life and Personal Liberty
Article 21 ensures that no person shall be deprived of life or personal liberty except according to procedure established by law. The Supreme Court has interpreted this right to include privacy, dignity, bodily autonomy, and mental well-being.
In State of Karnataka v. Krishnappa, the Court acknowledged that sexual violence is a violation of a woman’s right to privacy and sanctity. Similarly, in Suchita Srivastava v. Chandigarh Administration, it held that autonomy over one's body and reproductive choices falls within the scope of Article 21.
Further, in the seminal privacy judgment—Justice K.S. Puttaswamy (Retd.) v. Union of India—the Supreme Court declared the right to privacy as a fundamental right. It explicitly recognized the right to make intimate personal decisions, including those of a sexual or procreative nature, as part of individual liberty.
Therefore, forced sexual relations in marriage, which the law currently condones, directly violate a woman’s fundamental right to live with dignity.
Conclusion: The Need for Urgent Reform
Marital rape is not just a legal anomaly; it is a deep-rooted societal issue that legitimizes violence within the institution of marriage. The immunity granted to husbands by law undermines the principles of equality, liberty, and justice, which form the cornerstone of our Constitution.
India must join the global community in recognizing marital rape as a criminal offence. The continued existence of Exception 2 to Section 375 IPC not only discriminates against married women but also denies them the basic human right to bodily autonomy and dignity.
It is time for the Indian legislature to amend the IPC and abolish this outdated and unjust exception. Criminalizing marital rape is not an attack on marriage; it is a step towards restoring faith in the rule of law and upholding the rights of every woman, married or unmarried.
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ReplyDeleteOne for the topic we all want to talk about! Really well-written.
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