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Marital Rape An Unjust Law

India is ranked 133 out of 167 countries in terms of women's equality and women's safety. What is India, if not misogynistic, blinded by ancient beliefs and hypocritical traditions, as it can be seen in the case of marital rape? India remains one of 36 countries where marital rape is not criminalized. For a country destined to be a superpower in the future, these outdated laws and a narrow mindset create a massive barrier to moving forward.

Rape is defined in section 375 of the Indian Penal Code (IPC). It includes all forms of sexual offences, including non-conscientious intercourse with a woman. There is, however, a caret exception which features in the second exception of section 375. It exempts non-consensual sexual intercourse with a wife over 15 years of age.

It makes it legal for a man to rape her wife, aged 15 or above. When this law was enacted, which dates back to the Victorian era, women were not considered a separate legal entity. It has not changed since then, even though there is numerous writ petition before the Supreme Court and various high courts.

So now a question arises: why is marital rape still not criminalized? 
The first argument is that it is against our Indian culture. Those who stood against these wrongdoings were accused of being frantically following Western Culture as suggested by the Indian Government. One of the most prominent newspapers reported that this country has its unique problems due to various factors such as literacy, lack of financial empowerment of the majority of women, the mindset of society, vast diversity, poverty. Etc. And this should be considered carefully before criminalising marital rape.

What they're trying to say is in India. Most of the population are illiterate, destitute, parochial unlike in the western countries, Indian wife is dutiful towards her husband and our country is sustaining itself because of the family platform which upholds family values. In August 2019, what is he trying to say is that most marriages would fail if women stood abreast of their rapist husbands.

With that, we can see how deeply the rape culture rotted in our system. Even our judiciary, which is supposed to fight social injustice, stands with this social evil. For example, former chief justice Dipak Mishra took a position against the criminalisation of marital rape because, according to him, it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.

So, as we can see, according to the prominent people who are supposed to govern us and safeguard our rights, are the ones who stand the way to defeat this vice. Their argument that criminalising marital rape would weaken marriage is discredited by the Supreme Court of India, in a landmark judgment Independent Thought vs Union of Indian. If judicial separation and divorce do not weaken the strength of marriage, marital rape certainly cannot, the court said.

The second argument against criminalizing marital rape is that women will misuse this law and falsely accuse their husband. According to an affidavit filed in Dehli High Court, the union government argued that if a law criminalising marital rape is passed then it would be an easy tool to harass husbands, and ridiculously contending that if all sexual acts between a husband and his wife qualify to be marital rape then the judgment whether it is marital rape or not will singularly rest with the wife.

As it should be, this is the whole concept of legal proceedings. This argument has been used time and time again for various laws that protect women. For example, in the case of the Protection of Women from Domestic Violence Act, the Dowry Prohibition Act and Section 498A of the IPC.

However, there's no substantive evidence of misuse of these laws. They only assumed the assay was that of low conviction rate, which in itself is faulty. Low conviction rates are often not due to fraudulent claims, but to inadequate investigations, prejudice in our judicial system and tampering with evidence. A quote given by DR Martin Luther King perfectly sums up the faults in the argument, Justice denied anywhere diminishes justice everywhere. It makes no sense that, for fear of misuse of the law when there is no evidence to support such a claim, it restricts its enforcement when there is definite evidenceof wrongdoing. The threat to India's toxic masculinity culture is another reason why this argument is habitually used.

The third and most senseless argument is that women will misuse this law to file unfounded suits against men and will become a tool to harass them. This claim is backed by the Union government in an affidavit offered by them to the Dehli High Court, which states that criminalizing marital rape can become an easy tool to harass husbands, and they support this argument that every time comes up when sketching laws on women's safety in this country and that is all sexual acts between a husband and his wife qualify to be marital rape then the judgment whether it is marital rape or not will singularly rest with the wife. This argument came up when enacting various laws protecting women, for example, the domestic violence act, dowry prohibition act etc.

The problem with these arguments is that all these are speculative and no laws are violated if marital rape is criminalized. On the other hand, various laws are violated when marital rape is not criminalized and we shall discuss it in detail below.

Violation of article 14 of the Indian Constitution: Article 14 of the Indian Constitution guarantees equality for all. The marital law prejudges women who are married and raped by their husband by withholding them equal protection from rape and sexual harassment. Section 375 segregates married and unmarried women, protecting unmarried women from sexual harassment and rape. This contradicts article 14 of the Indian Constitution, which denies equal protection of the law.

Violation of article 21 of the Indian Constitution: Exception 2 of section 375 violates article 21 of the Indian Constitution and Article 21 of the Indian Constitution. It states that no person shall be denied his life and personal liberty except per the procedure established by law.

The meaning of the term 'personal liberty' has been interpreted several times and to extents beyond the veritable essence of life and liberty. It now encompasses the right to privacy, health, dignity and a competent living condition. And it has been deciphered again to incorporate the right to make choices about sexual activity as given by the Supreme Court in Suchita Srivastava v. Chandigarh and Justice K.S. Puttuswamy V. Union of India. The Supreme Court of India has recognised article 21, the right to privacy as a fundamental right, and its violation is unconstitutional.

In conclusion, exception 2 of Section 375 unquestionably an infringement of article 14 and 21 of The Indian Constitution and it is hard to understand how it is succinct coarse than triple talaq or polygamy. But even after all these judgements by the courts and protests, criminalizing marital rape is still a distant mirage because the power remains with our prejudice government.

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