Updated: Aug 26, 2020
Section 375 of the Indian Penal Code defines Rape—A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
1. Against her will.
2. Without her consent.
3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
6. With or without her consent, when she is under sixteen years of age.
Explanation-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
According to the exception of section, 375 of IPC marital rape cannot be wrongdoing in India. Marital rape is the demonstration of sex with one's spouse without the companion's assent. The absence of assent is the basic component. According to current law, a wife is presumed to deliver perpetual consent in sexual relations with her better half after entering into a marriage. In India, sex inside marriage is viewed as a privilege of spouse.
While reluctant sexual contact between a spouse and a wife is perceived as a criminal offense in pretty much every nation of the world. India is one of those thirty-six nations that have not condemned marital assault. The Supreme Court of India and different High Courts are at present overflowed with writ petitions testing the legality of this exemption, and in an ongoing milestone judgment, the Supreme Court criminalized reluctant sexual contact with a spouse somewhere in the range of fifteen and eighteen years old. This judgment has thus prompted an expansion in different writs testing the constitutionality of Exception 2 overall.
Conjugal assault is not an offense in India. Marital rape is seen as an assault in India just when the spouse is under 15 years of age. Even the punishment is gentle and there is no legitimate security given to the companion following 15 years old, which damages human rights. As indicated by the Indian Penal Code, the cases wherein the spouse can be criminally summoned for an offense of marital rape are as under:
At the point when the spouse is between 12 – 15 years old, the husband is culpable for detainment up to 2 years or fine or both. At the point when the spouse is under 12 years of age, husband is confined for a term which probably won't be under 7 years yet rather which may connect with life or for a term stretching up as long as 10 years and ought to similarly be liable to fine;
Rape of wife of over 15 years in age is not punishable under IPC.
Impacts of Marital Rape
India is a country where marriage is considered as a Sanakaras (sacrament) and one of the basic aspects of Hindu society. In the ancient legal history, it was said that it is the duty of the husband and wife not to disclose the matters, which happens inside the four walls of their bedroom. . The predicament of Indian wife is hopeless and needs consideration of the administrative government to shape laws against marital assault.
Women who are exposed to marital rape suffer a lot from mental as well as physical injury. Marital rape leaves a grave impact on its victims dealing with emotional, psychological and physical trauma. Women who are raped by their spouse represents a longstanding feeling of double-crossing. The mental effect of rape in women brings down their confidence and create a negative impression on men. Women who are raped by their husbands have been found to lose trust in marital relations. It even hampers their body, which prompts numerous medical issues such as unnatural birth cycles, stillbirths, bladder contaminations, barrenness and the potential withdrawal of explicitly transmitted illnesses including HIV. At last, a wedded woman lives with her rapist and not simply the alarming memory of being abused.
Violation of Article 14
Article 14 of the Indian Constitution states 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”. Even however the Constitution of India ensures equality to all; it victimizes the females who have been exposed to assault by their spouses. When IPC was drafted i.e., during 1860's women were viewed as the chattel (asset) of her significant other so they did not have a state on their relationship. Therefore, they did not have any sort of legitimate right to file an objection against their own spouse since wedded women were not considered as a free lawful element. Nevertheless, presently the time has changed Indian law currently manages husband and wife isolated and free lawful personalities.
Section 375 exception 2 of IPC violates the right of equality of women as it discriminates among the wedded women by denying them equivalent assurance from sexual assault and harassment. Exception 2 separates among wedded and unmarried women, which violates article 14 of Indian constitution. The Supreme Court held that any order under Article 14 of the Indian Constitution is dependent upon a sensibility test that can be passed just if the grouping has some discerning nexus to the target that the act tries to accomplish. However, Exception 2 disappoints the reason for Section 375: to protect women and punish those who engage in the inhumane activity of rape. if we observe the gravity of the crime then there's no differentiation for a wedded and unmarried person. Truth be told, it is increasingly hard for a wedded woman to get away from the harsh badgering of the spouse since she is legitimately and monetarily attached to her husband. If we see, exception 2 urges the spouse to constrain their wives into sex since they realize that law does not punish their acts. Therefore, it doesn't fulfill the trial of sensibility, and in this manner disregards Article 14 of the Indian Constitution.
Violation of article 21
Article 21 of the Indian Constitution states that no person shall be deprived of his life or personal liberty except according to procedure established by law. Supreme Court has expressed that the rights mentioned in article 21 incorporate rights to Wellbeing, dignity, privacy, safe living conditions, and safe environment, among others. In The State of Karnataka v. Krishnappa, the Supreme Court held that sexual brutality apart from being a dehumanizing behavior it likewise infringes right to privacy and sanctity of a female. Supreme Court has likewise equated the rights for the both men and women to decide on matters concerned with sexual activity with rights to personal dignity, liberty, privacy and bodily integrity under article 21 of the Indian Constitution.
In Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court perceived the right to privacy as a fundamental right of all people across India and held that the right to privacy incorporates "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 dwelling together is an infringement of fundamental rights. The above stated rights do not distinguish wedded and unmarried women and there is no rule in which such rights are lost by marriage.
Supreme Court has repeatedly referenced that Article 21 incorporates right to life with dignity. However, exception 2 disregards this right as spouses forcefully engages their wives into sexual contact, which influences their physical and mental and undermines their capacity to live with dignity.
The above conclusions clearly reflect that Exception 2 to Section 375 of the IPC is an infringement of Articles 14 and 21 of the Constitution. Criminalization of marital rape is wholly necessary as if affects mental and physical condition of a women. It is time that Indian jurisprudence understands the inhumane nature of this provision of law and strikes it down.
(Some information from the existing articles and newsletters have been taken as reference)