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Case Analysis Of Dilip Pandey v/s State of Chhattisgarh-2021

The marriage between the applicant and the complainant was solemnized back in 2017 where the applicant soon after, began harassing her on the demands of the dowry. In lieu of constant rejection, the complainant was compelled to indulge in unnatural sexual activities.

The compulsion since beyond her consent made her to approach the local police station and the applicant was arrested on the grounds of section 376, 377 and 498A of The Indian Penal Code (hereinafter referred to as IPC). The trial court had upheld the charges and a subsequent appeal was made to the High Court of Chhattisgarh for review.

  • Whether Section 375 of IPC which defines rape, includes marital rape and is applicable in the instant case?
  • Whether the applicant is punishable by law under Section 377 (carnal intercourse) and Section 498A of IPC (cruelty against women).

  1. The prosecution contended that the applicant having defied the modesty of his own wife should be punished with Section 376 of IPC and upheld that consent before any sexual activity is an essential not to constitute the offence of rape and the applicant clearly seems to have violated the requirements of consent. The prosecution having laid down their reliance on the very infamous Supreme Court case of Independent Thought v. Union of India claimed that marital rape is a recognised crime by Supreme Court.
  2. The prosecution demanded that the applicant should be punished under Section 377 for having indulged in unnatural sexual activities with his wife and under Section 498A for his repeated demand of dowry and his rudely and offensive behaviour against the complainant.

  1. The difference pleaded that marital rape is still not recognised in India and is protected by Exception 2 under Section 375 of IPC.
  2. The defence pleaded that carnal intercourse to induce momentary pleasure against the order of nature with any man, woman or animal is a prerequisite to constitute an offence under Section 377 which was absent in the instant case. Also held that the charges under Section 498 as erroneous, non-substantial and arbitrary, consequently demanding absolution from the above mentioned charges.

  1. The court having placed its reliance on the 2018 Gujarat High Court judgement of Nimesh Bhai Bharat Bhai Desai vs State of Gujarat and thorough examination of section 375 of IPC which included the exception to under as follows:
    "Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not a rape." held that any sexual act by a legally wedded husband (the wife not being under 15 years of age) is not a rape. The court denied to take the factor of consent into notice and held consent is immaterial to the present case since Exception 2 does not talk about consent at all, holding charges under Section 376 against the applicant as erroneous and illegal.
  2. With respect to Section 498A, the court upheld the trial court's decision taking into account the witnesses produced before the court (legal mother and father of the complainant) holding the applicant guilty of Section 498A of IPC (women subjected to cruelty by husband or relatives of husband.)
  3. With respect to Section 377, the court placed its reliance on the case Momina Begum v. Union of India and Ors. to hold that abusing intimate organs with anything other than establishing natural cohabitation would lead to carnal intercourse against the order of nature being established. The court came up with a reasonable decision holding that even a wife can file a suit against her husband under Section 377 of IPC and consent is immaterial to the cases involving this section. The court held the applicant guilty under Section 377 and upheld the trial court's verdict.

The case soon caught the attention of the legal luminaries who called it a "Missed Opportunity to Revolutionise Marital Rapes in India". The legal luminaries called it a flawed judgment holding Section 375 of IPC being wider than it seems where the court could have given it a strong precedential background. Curbed by the syllabi, would be analysing the aspects of Section 375 and if it is high time to consider marital rape as an offence under the Indian Jurisprudence.

India is the seventh largest and the second most populous country yet the rates at which the crimes are increasing in India is not just alarming but also embarrassing. Marital rape has become one of the chief concerns in the fields of women's rights where the victims are denied justice on grounds of an outdated law and Supreme Court refusing to set out a clear precedent with respect to these cases.

To quote FH Batacan:
"Her friends used to tell her it wasn't rape if the man was her husband. She didn't say anything, but inside, she seethed. She wanted to take a knife to their faces."

The common law principles had held a woman to be a chattel and that women happens to be an estate of her legally wedded husband. It was the same case where the Indian Supreme Court recognised that this notion and belief is outdated and needs some stringent transformations with respect to marital rapes in India.

The only good that Supreme Court could have done to Exception 2 of Section 375 was to broaden the exception and make it under a punishable offence for any minor girl, as initially it was for a girl only fifteen years of age.

Marital Rapes and The Indian Constitution
"The Constitution is the basic document which is the guiding light for all other legislations in India." Article 13 the Indian Constitution talks about the consequences when a law goes against the Part 3 of the Indian Constitution. DTC v. DTC Majdoor Congress is a famous case where the supreme court applied the Doctrine of Severability to hold the provisions of the legislation in as much as to the conflict it created with the The Constitution as void. The above discussion proves that no provision of any subsidiary legislation is allowed to go against Part 3 of the Constitution. Let us not talk about how marital rape violate Article 21 of the constitution.

Article 21 or Right to Life is an all-encompassing right in lieu of the multiple residuary rights that the Supreme Court has put under it from time to time. "Right to Life includes the right to a dignified life free from the shackles of slavery and injustice." The said judgement broke free the shackles of common law principles holding woman, an estate of a man and held that every individual has a right to a dignified life.

Further in Chairman Railway Board and Ors. vs Chandrima Das and Ors., the Supreme Court held that any non-consensual sexual activity would contribute a rape which not just disturbs the mental state of the victim but also the dynamics of the whole society at large.

Furthermore, the Indian Supreme Court landmark Justice KS Puttaswamy v. Union of India upheld the Right to Privacy as a part and parcel of the residuary rights under Article 21 of The Constitution and held that the right to make choices about sexual activity is very much within the scope of right to privacy, human dignity, bodily integrity under Article 21.

In lieu of this judgment, many precedential judgements have proved that the sexual desires of a woman is her own personal right and decisions which cannot be breached. In Vishaka v. State of Rajasthan, The Supreme Court upheld that sexual orientation of a woman is very well protected under Article 21 and the same views were repeated in State of Maharashtra v. Madhakar Narayan where the Bombay High Court clearly laid down that 'No means a No even if the partners have any fiduciary relationship to entrust'.

In lieu of the above constitutional precedents, it can hence be proved that Section 375 (Exception 2) is an outdated law based on archaic common law principles which needs to be done away with. It violates Article 21 of the constitution and has been in place for a long time now. The Supreme Court can clearly set out their intentions and Exception 2 can be dealt with by the two special doctrines, Doctrine of Severability and Doctrine of Eclipse as mentioned in the Article 13 of the Constitution to deal with provisions repugnant to Part 3 of the Constitution.

Other than the Constitution, Marital Rapes also breach multiple cases of IPC including Section 319 (Hurt), Section 221 (Voluntarily Causing Hurt), Section 351 (Assault) and Section 354 (Outraging the Modesty of a Woman).

Other Judgements:
  1. In Nimesh Bhai Bharat Bhai Desai v. State of Gujarat, the Gujarat High Court upheld the autonomy of a woman and her consent to be the prima facie consent irrespective of the marital status of the said women holding that marital rapes are rapes too.
  2. In Hridaya v. RIT Foundation, Delhi High Court's Division Bench held that marriage in lieu of being just a social contract does not mean that a wife is all-time ready, willing and consenting for sex.
  3. In Suchitra Srivastava v. Chandigarh Administration, Punjab and Haryana High Court held that forced cohabitation is violative of Article 21 of the Constitution and also constitutive of a rape.

Committee Reports:

Justice JS Verma Committee (headed by former CJI Justice JS Verma) which was constituted in 2012 to suggest changes in the criminal system to expedite the process of rape trials in India seeked an exception to the existing marital rape laws in India. The three member committee was of the view that marriage should not be a defence against sexual crimes committed devoid consent.

The 172nd Law Commission Report headed by the then, Minister of Law Shri Ram Jethmalani, had also suggested crippling Exception 2 to Section 375 and had held how non-consensual sexual activities are arbitrary and archaic.

Despite clear precedents and many recommendations neither the Central Government nor the Supreme Court is willing to take cognizance of the increasing number of marital rape cases in India. The Indian Supreme Court has time and again upheld that the Right to Life also encompasses right to live with human dignity yet the Exception 2 to Section 375 of India allows a husband to sexually exploit the interests of his wife without her consent, severely affecting the mental health of the woman and her physical relations with her husband and also undermining her right to life with human dignity.

Marital Rapes are an exception to the existing rape laws which undermines the concept of consent under Indian laws. Given the large differences that various High Courts have ruled in regards to the matter, Indian Supreme court should take cognizance of the matter understanding the humiliation it is inducing to the Indian Jurisprudence through the inhuman nature of this exception. Marital Rapes are already a crime in 36 other jurisdictions few of them are as follows:-

USA- Marital or Spousal Rape is a crime in all the fifty states in USA. States like Maryland and Mississippi have rape laws against the husband even if they are mutually undergoing judicial separation. In states like Nevada and Oklahoma, cohabitation under the influence of drugs and narcotics without any pre-consent is also considered a rape.

The UK- The UK Sexual Offences Act, 2003 talks about rape where marriage is no defence to Section 1 which defines and penalises rapes. In R v. R, House of Lords affirmed to the possibility of rape against a man's own wife and no defence to marital rape was accepted in this case.

There are plenty of IPC sections which get violated when marital rapes are not considered or accepted in Indian Courts. The difference in judgements makes this crime fall under a grey area where the accused easily escapes the hands of the law. The victims are the ones who gave up their Fundamental Rights in lieu of protecting their marriage against the disrepute which will be caused in the society.

Marital Rapes are also the ones which tarnishes the sanctity of marriage since it is a woman's own husband who uses a criminal force on her against her will, whom she trusts and has faith to protect her. The Indian jurisprudence needs to understand this anomaly and counter effectively this prevalent social stigma.

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