Unfortunately, women in our country belongs to the class society which is at a very disadvantageous position on account various social impediments and therefore have been the victims of tyranny at the hand of men with whom they enjoy equal status under our Constitution. Women under our Constitution enjoy the right to life and personal liberty and their right cannot be abridged or touched with by any one. Women have been asigned multiple personality roles by nature such as of a Mother, Sister, Daughter, and Wife and such roles should be honourned. Women cannot be made play things and must not be exploited for obscense purposes.
The crimes against women have been increasing in the recent past. The major crimes being committed against women are dowry death, sexual-harassment, acid-attack, domestic violence, cruelty, discrimination and many more. Rape is the most henious offence against women and it affects the dignity of women. The offence of rape leaves a lasting physical, mental and pyschological effect upon the women against whom such offences are committed.
Marriage is considered to be an important universal social institution found in almost all societies and is a socially sanctioned relation between the couple where they live together, have sexual relations and produce childre. The important social issue which arises today is the sexual relation of the couple where the woman does not give her consent for the same. Does that act committed upon wife without her consent would qualify itself to be within the perview of Rape as defined under the Indian Penal Code and can the accused i.e., the husband be held liable for such an offence? Does he gets imunity because the woman is his wife? Does marriage gives the husband a license to commit an offence, which ordinarily would be qualify as an offence of rape? The present position of law is that when a man has sexual intercourse with his own wife, it is not an offence. The law exempts Marital Rape as an offence committed against wife. The question now is that whether marital rape should be made an offence under the Indian Penal Code and whether exception 2 to section 375 can be done away with?
CRIMINALIZING MARITAL RAPE: NEED OF THE HOUR
Rape is the most henious offence which can be committed against women. It is not the crime against the victim alone but against the society at large. The offence of rape leaves a deep psychological effect and pushes her into deep emotional crisis and it is only because of her sheer will that she rehabilitates herself back into the society which on coming to about the rape looks down upon her in contempt. Rape is the most hated crime and is the crime against the most cherished fundamental right of right to life and personal liberty contained in Article 21 of the Indian Constitution.
The offence of Rape is defined under section 375 of the Indian Penal Code as sexual intercourse with a owoman against her own free will, without consent, by cohersion, misrepresentation, fraud or at a time when she is intoxicated or when her mental condition is not stable and if she is under the age of 18 years. Exception 2 to section 375 of the Indian Penal Code says that sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape. Exception 2 to section 375 tends to immunize the acts of the husband when the sexual intercourse with his wife is committed without her consent.
The crux of Section 375 of the Indian Penal Code is that when a man forcibly has sexual intercourse with any woman against her CONSENT that person is said to have committed the offence of rape as defined under the provisions of Penal Code. Presently, if a man commits sexual intercourse with a woman without her consent it would be termed as rape. But subsequently, if the man commits an act of sexual intercourse with a woman without her consent but that woman being his wife, then such acts of the person does not attract the offence of rape under the present legal senario. Therefore, this differentiation of the similar acts between two different class of people, one being married woman and other being the unmarried woman, in general should attract the siminalr punishment and be considered as an offence of rape. The essence being the consent, it is neither obtained when the woman is unmarried nor it is obtained when the woman is married. Therefore, such a distinction is manifestly arbitrary and is violative of Article 14 and Article 21 of the Indian Constitution.
- MARITAL RAPE VIOLATIVE OF ARTICLE 14 OF THE INDIAN CONSTITUTION
Article 14 of the Indian Constitution casts a duty on the government to not discriminate any person on the basis of the caste, creed, religion, sex, or age. It creates a positive right in favor of the citizens and a negative right in favor of the government. Article 14 does not make this right an absolute right but permits reasonable classification and that classification should be based on a intelligible differentia. In the present case at hand the classification is being upon two different classes of people i.e., married and unmarried woman. However, such a differentail classification being made between two classes of people does not pass the test of reasonablenesss. It is because a person who commits an act of sexual intercourse with a woman without her consent even if that woman is her wife, cannot be allowed to escape through the hands of law. The act in case of married woman and the act in case of unmarried woman is the same, in both the cases the consent of the woman is not obtained i.e., it is against her free will and by way of force, but the present law differentiates between the two based on the exception 2 to section 375 of the Indian Penal Code. However, in my view such a differentia between the two classes of woman is unreasonable and consent being the essence of section 375 should apply to both the classes of women and therefore, the acts of a person who has sexual intercourse with a woman (be it with his own wife or with any other woman) without her consent qualifies to termed as an offence of rape as defined under section 375 of the Indian Penal Code.
- MARITAL RAPE VIOLATIVE OF THE MOST CHERISHED RIGHT I.E., RIGHT TO LIFE AND PERSONAL LIBERTY
Article 21 of the Indian Constitution is defined as the heart of the Indian Constitution as it contains the most basic human right of life and personal liberty. The right to life contained in Article 21 does not only mean mere animal existance but it means that the person is entitled to live a meaningful life. Article 21of the Indian Constitution has been given the most widest interpretation by the judiciary. It is interpreted to the extent that the right to livelihood, right to pollution free environment, right to basic emenities, right to live a dignified life, right to privacy, right to choose, right of sexual autonomy, etc stems from this very cherished fundamental right of right to life and personal liberty.
However, this cherished fundamnetal and basic right becomes less valuable in cases where the married women have to give up their right of sexual privacy, sexual autonomy, dignity and the right to choice when the act of sexual intercourse is being committed by their husband without their consent. In State of Maharashtra and ors. vs. Madhukar Narayan Mardikar MANU/SC/0032/1991 the Supreme Court had held that even a woman of easy virtue is entitled to her privacy and no one can invade her privacy as and when he wishes and she is entitled to protect her person if there is an attempt to violate her right against her wishes. Thus, it is very clear that invasion of a woman’s right to privacy, even if she is a wife, against her wishes is nothing but a violation of the most cherished and basic human right and she is entitled to protection of law.
The Hon’be Supreme Court in State of Karnataka vs. Krishnappa (2000) 4 SCC 75 had held that the act of sexual violence is a dehumanising act and is an unlawful intrusion of right to privacy and female’s sanctity. The offence of rape is an attack on the supreme honour of woman and it offends the slef esteem and dignity of the woman. In State of Punjab vs. Gurmit Singh 1996 SCC (2) 384, the Hon’ble Surpeme Court had held that the sexual offence violates the woman’s privacy, dignity, and personal and bodily integrity and it is an attack on the very soul of the helpless female.
The right to privacy was also held to be the fundamental right within the ambit of the right to life and personal liberty in Justice K.S. Puttuswamy (Retd.) v. Union of India 2017 (10) SCALE 1. The court interpreted the right to privacy so as to include decisional privacy which was reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.
Thus, in view of the above dicsussion it is very clear that the offence of rape is an attack on the very dignity of the woman and it violates her most cherished fundamental right of life and personal liberty. It is thus, clear that the present law needs to remove such a distinction betweem the two categories of married and unmarried woman because unfortunately when an offence of rape is committed on an umarried woman it will qualify as an offence under the law whereas when the same is committed on a wife by the husband he would saved by virtue of exception 2 to section 375 of the Indian Penal Code. And Consent being the essence in both cases, must be obtained and sexual intimation between the husband and wife should be at the will of both and not just the husband. Making marital rape an offence would not create anarchy in families and in no manner destroy the family values. Thus, making marital rape an offence is a need of the hour and it is necessary to strike down exception 2 to section 375 of IPC so as to respect and uphold the basic fundamental right of life, personal liberty, privacy, sexual autonomy and right to bodily intergrity of woman.
AUTHOR: HITESH P VACHHANI
DISCLAIMER
The above article is for educational purpose only. It is a result of the author’s own intellect and ideas and proper references and citations have been mentioned in the artilce for deeper understanding of the issue discussed above. The matter embodied has been properly referenced and acknowledged to avoid any kind of copyright issues.
JURISTIC LEGAL 