Review: Marital Rape
The idea that striking down exception 2 of Section 375 of the Indian Penal Code,
1860 (IPC) will tear apart the institution of marriage is a premise based on a
hypothetical imperative. It is based on the archaic notion that- if a woman does
not succumb to all the wishes of her husband, the marriage will fail.
aforesaid exception carved under Section 375 is the epitome of such belief.
Section 375 robs from a wife something as basic as autonomy over her body,
which, as per the hypothetical imperative, is prudent to save the institution of
marriage. But what is presumably prudent may not be just. In order to decide
whether such an approach is right, one has to use reason. Reason as to why two
individuals decide to marry and live together.
De- criminalization of marital rape not only violates Articles 14 and 21 of the
Constitution of India, but also, is an instrument that promotes marital rape.
Psychologists have classified rapists into various classes. But they unanimously
agree that - all rapists are predicted to be attuned to a potential victimís
vulnerability but an opportunistic rapist is especially so. Studies show that
men are more likely to rape when the costs are low.
This can be even confirmed
by the research which demonstrates that women with family members, particularly
adult male family members, living nearby are much less likely to be physically
assaulted by their partner. Therefore, by withdrawing the penal consequences of
marital rape, it is reasonable to conclude that the exception under Section 375
rather than protecting the institution of marriage, is a catalyst escalating the
incidents of marital rape. Therefore, the notion that exception carved in
Section 375 for husband is serving any good to the society is ludicrous and
Rape has enormous adverse effects on a woman. Most victims suffer from issues
like post-traumatic stress disorder (PTSD) and other similar difficulties. The
impact on psychology is aggravated if the rapist is a known person, such as her
own husband. A woman raped by a stranger lives with his memory, a woman raped by
the husband lives with the rapist and faces the recurring possibility of getting
raped again by her husband every moment. A study published in Psychological
Medicine gives evidence that out of the women with severe mental illness, 40%
are rape victim or have suffered an attempt.
Out of them, three percent of such
victim committed suicide. With such records and otherwise as well, patently
relying upon reason and logic, de-criminalization of marital rape under Section
375 is draconian, unjust, and arbitrary. It is something which is so perverse in
nature that it does not even require an argument whatsoever. The court should
declare the said exception under Section 375 as unconstitutional.
UN Committee on Elimination of Discrimination Against Women recommended to India
to criminalize marital rape. Government of India rejected such recommendation
stating that "it is considered that the concept of marital rape, as understood
internationally, cannot be suitably applied in the Indian context due to various
factors e.g., level of education/illiteracy, poverty, myriad social customs and
values, religious beliefs, mindset of the society to treat the marriage as a
Use of such concepts to defend something like marital rape is
inappropriate. Firstly, a hypothetical imperative that level of literacy and
poverty in a society shall be a factor to not punish a husband if he rapes his
wife is something horribly absurd. A crime is a crime due to the intrinsic
nature of the act. It shall be an instrument of mathematical precision and not
something depending upon irrational variables.
Needless to say, the exception 2 of Section 375 of the IPC is in patent
contravention of Article 14 &
21 of the Constitution of India. The Supreme Court in State of Karnataka vs.
Krishnappa held that sexual violence apart from being a dehumanizing act is an
unlawful intrusion of the right to privacy and sanctity of a female. It is a
serious blow to her supreme honor and offends her self-esteem and dignity. Rape,
being one of the acts of sexual violence is against the right to privacy which
is a subcomponent of right to life and personal liberty guaranteed under Article
21 of the Constitution of India.
Therefore, excluding a woman from exercising
her right to life just because she is married and the perpetrator of the offense
is her husband under Section 375 of the IPC, being unjust and unfair, violates
article 21 of the Constitution therefore is liable to be struck down. Failing to
satisfy the test of reasonable classification, as described above, the exception
2 under Section 375 should be declared ultra-vires the Constitution as it
violates Article 14 of the Constitution of India. Justice J.S Verma Committee
report was correct in recommending criminalization of marital rape.
government missed the bus then. But it is better late than never. With the hope
that marital rape will be criminalized soon, following are the remedies that can
be availed by a wife against her husband in the instance of marital rape.
In spite of the absence of criminal liability for the specific act of 'rape', a
married woman is not left remediless entirely. The victim can take recourse to
both criminal as well as civil laws for the purpose of ameliorating her physical
and emotional trauma to some extent. For example, as per Section 354 of the
Indian Penal Code, 1860 (IPC), if any man uses physical force in order to
'outrage the modesty of a woman' then the man can be punished with minimum of
one year imprisonment which can also extend up to five years depending on the
gravity of the 'criminal force' used by the man.
Similarly if any man makes any
physical contact of sexual nature which is not welcomed by the woman then the
man can be punished under Section 354A of the IPC for up to three years of
rigorous imprisonment. Not only this, the very act of a man of forcing any
woman to be naked or disrobing her against her will is punishable under Section
354B of the IPC with minimum of three years imprisonment which can be increased
up to seven years depending upon the gravity of the act and the consequence.
Apart from this, recourse can also be taken under various provisions of the IPC related to hurt and grievous hurt for any physical injury resulting from the
actions of the man forcing himself on any woman. Another provision in the IPC
which can be helpful for a woman is Section 498A.
This provision punishes any
act of cruelty by husband up to three years imprisonment. It is pertinent to
note here that the term 'cruelty' here is not just physical harm but also
includes danger to mental health of the woman due to the actions of the husband.
These above-mentioned remedies are the criminal remedies which focus on
punishing the perpetrator of the crime.
Written By: Shubham Kumar, 2nd Year 4th Semester, KIIT School Of Law
Law Article in India
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