Abstract
The present paper critically explores the legal as well as social implications of the phenomenon of marital rape in India, questioning the patriarchal belief that has been deeply entrenched in society that refuses the married woman her body liberation. It looks into the historical and legislative background of the marital-rape-exception provision of section 375 of the Indian Penal Code that intellectualizes the sexual violence as it occurs in marriage. Based on constitutional principles, international human rights obligations, and comparative jurisprudence, this paper contends that the marital rape exception is inconsistent with a woman’s basic rights of equal treatment, dignity and personal autonomy under articles 14, 15, and 21 of the Indian Constitution. This research also considers the psychological, emotional, and physical trauma of victims exacerbated by society’s silence and legal apathy. Through the prism of judicial interpretations as well as recommendations of law commissions and civil society groups, this research supports the long necessity of legal reform to criminalize marital rape. In addition to the legal critique, this study also delves into the social stigma, institutional apathy, and psychological trauma faced by victims, which collectively silence survivors and deter legal reform. Ultimately, the paper calls for the recognition of marital rape not only as a criminal offence but as a violation of the very core of human dignity and constitutional morality and a need for rights-based, victim-centered system of law that strikes down the presumption of marital consent which is irreversible, and restores the faith in a non-biasgender based justice system within the constitution.
INTRODUCTION
Whenever a particular provision of a statute is interpreted, the focus is essentially drawn on the objective with which the legislature has framed it. It is the understanding of such an objective that leads to its effective enforcement. When Section 375 which talks of rape was inserted in the Indian penal code 1860(hereafter referred as the code) the primary objective of the law framer was to protect dignity of a woman, importance of her consent, her willingness, and her decision to indulge in any of the sexual acts so as to protect her from draconian act by men. Rape is a traumatic experience that shatters a woman not only in physical but also in mental capacity[1]. The rape law in India protects a woman not only from being seen as a sexual object whose consent is insignificant for men but also strives to punish such men who dare to encroach the boundaries set by such law. The direction in which the legislature has moved forward till here is highly appreciable but there are some lacunas that exist in the provision of Sec 375 of the code that demolishes the entire objective of the legislature. A crime is a crime and a criminal is a criminal and no stamp of relationship can wrong this saying. The Exception 2 of Section 375 of The Code which says ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape’, is a flawed exception that represses the whole objective with which a sexual activity with a woman against her will or consent was criminalized. Whenever a crime is committed the court sees two important principles behind it one is Mens Rea which means ‘guilty mind’ and another one is Actus Reus which means ‘wrongful act’[2]. Rape is not solely product of sexual desires but many times in fact more than the first reason, it is product of ego and desire to proof one’s masculinity.[3] Here the wrong objective (guilty mind) is to forcefully get involved into sexual intercourse with a woman without her will and the actus reus is manifesting the wrong mental object of getting into forceful sexual relationship with a woman. Now here the point to be understood dispassionately is that whether such wrong intent that occurs in mind and is executed by a man who is not a husband or a man who is a husband is equally wrong, and is wrong in the same way if the same man whether married or not would have committed any other grievous offences under the Indian Penal Code 1860. [4]Rape is a serious offence in the eyes of law and there should be no room for such exceptions that not only go against the basic principles of law of rape that emphasis on right to ‘consent’ of a woman but also the basic fundamentals of Constitution that guarantees right to equality and rights to live life with dignity, liberty and freedom. [5]
[1] Anirudh Pratap Singh, ‘The impunity of marital rape’Indian Express (Delhi,20 December2020)
<https://indianexpress.com/article/opinion/columns/the-impunity-of-marital-rape/> accessed 1st September 2021
[2]Prof.T. Bhattacharyya, The Indian Penal Code (10th edn, Central Law Agency 2019)
[3] Rasheeda Bhagat, ‘The rape is about power and not lust’, Business Line The Hindu (Delhi, 12, March 2018) <https://www.thehindubusinessline.com/opinion/columns/rasheeda-bhagat/rape-is-about-power-notlust/article20544411.ece1> accessed 25th August.2021
[4] Krishnadas Raj Gopal, ‘Court continue to differ in views on Marital Rape’, The Hindu (Delhi1,4 August,2021) <https://www.thehindu.com/news/national/courts-continue-to-differ-in-views-on-maritalrape/article35909828.ece> accessed 25th August 2021
[5] Sarthak Makkar, ‘Marital Rape a Non-criminalized crime in India’ (2021) 34(1) Harvard Human Right Journal <https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india >1st September 2021