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Marital Rape: Is it not a Sexual Assault?

India, the largest democracy in the world, is a modern nation that does not view marital rape as a crime. Not only it is a crime, it is also a judicially sanctioned form of sexual assault that many Indian women suffer at times on a daily basis, without legal recourse. This article examines the legal position of the government of India as well as the judicial system in India regarding marital rape.

Marital Rape exception clause of the Indian Penal Code is illegal, unconstitutional and creates an unduly arbitrary distinction between married and unmarried women in India. Immunity from marital rape as currently found in India's law books violates Indian domestic law, constitutional law and international treaty obligations and should be abolished. Through silence, the Judicial Branch of India recognizes and approves marital rape by Indian men, thus legitimizing their particular form of violence against women simply because they are women and their status within society exists.

INTRODUCTION
Marital rape as term in itself defines a type of sexual violence. Marital rape refers to violent sexual assault or violence by one spouse towards the other. It is violent and brutal, and the use of violence by the husband against her wife to have a physical relationship with her is the essential element of marital rape.

Therefore, a defendant can only commit a crime through the use of physical violence, the lack of which does not amount to the commission of an act. Marital rape is not consensual either, which means denial or rejection by one or more parties is involved in the act. These non-consensual sexual acts include not only natural sex, but also anal and oral sex, forced sexual conduct with others, and other sexual activities that the victim may find degrading, undesirable, painful, and brutal.

MEANING OF RAPE & MARITAL RAPE
The offence of rape is defined by Section 375 of the Indian Penal Code of 1860, which states that a man commits rape if he forcefully penetrates his penis into a woman's vagina. The vaginal depth is unimportant. Rape is defined as the tiniest penetration of a man's penis into a woman's vagina.

Unwanted sexual encounters between a man and his own wife that are acquired through unlawful violence, threats of violence, or actual assault, or when she is unable to consent to such sexual relations are referred to as marital rape. A man's violent non-consensual perversion of a woman in which she is physically and sexually mistreated is known as marital rape.

CONTEXT OF MARITAL RAPE IN INDIA
In India, marital rape is currently illegal; however, Exception 2 to IPC Section 375 clearly exempts acts of sexual assault in marriage from the definition of rape. However, exception 2 to Section 375 of the Indian Penal Code of 1860 makes it plain that a man's sexual contact with his own wife if she is under the age of 15 constitutes rape, regardless of whether he did so with or without her consent.

It is claimed that such a restriction was necessary to prevent men from exercising their martial rights prematurely. If she is over the age of 15, however, no man can be held liable for her own wife's rape. Article 14 of the Indian Constitution is obviously violated by Exception 2 to Section 375 of the IPC (equality before the law). The second exception to Section 375 of the Indian Penal Code of 1860 tends to discriminate against married women.

India is one of just 36 countries in the world that has not made marital rape illegal. Marital rape is not recognised as a crime by law or culture in many places around the world, including India. Although many countries define rape as a crime and impose penalties for it, they exclude the applicability of this law if the victim and the perpetrator are married. This is generally known as "marital rape exemption clause."

Married women were not regarded a separate legal entity when the IPC was created in the year 1860. Rather, she was seen as her husband's property. As a result, she lacked many of the rights that come with being an independent legal person, such as the ability to bring a complaint against someone else using her own name. Exception 2, which effectively prohibits husbands' activities against their wives from being considered "acts of rape," is largely influenced by and originates from the pre-existing idea of the woman's identity being fused with her husband.

Maneka Gandhi, former Minister of Child and Women's Development, sent a written response in Parliament to the question of the criminalization of marital rape, which states: "It is generally assumed that the concept of marital rape, as understood internationally, is not properly applied in the India due to various reasons such as level of education level / illiteracy, poverty, a myriad of social customs and values, religious beliefs, mentality of the society to show the relationship of marriage as a sacrament etc".

Along with his former Chief Justice Dipak Misra, he said:
"I don't think marital rape should be considered a crime in India because it will create absolute anarchy in families and our country will outlive itself because the family platform upholds the values relatives ".

The analysis of the national laws, constitutional provisions and statutory rulings of the Supreme Court of India somehow represents this complex issue. India's apex court has already addressed and ruled several constitutionally protected rights, including equality before the law and physical integrity. The Supreme Court of India created the constitutional framework that ultimately challenges clause spousal rape exception.

By analyzing the text, structure and the purpose of these legal sources, it is clear that there is no legal basis for the exception clause on spousal rape codified in Section 375 of the Indian Penal Code. What it does is illegal, unconstitutional, and an arbitrary invention of the legislature and the judiciary that is not based on the rule of law. The Marital Rape Exception Clause can no longer remain in the Indian Law Books as it has no legal purpose or value due to its unconstitutionality and requires its immediate removal from the IPC.

However, the times have changed. Today's Indian law recognises separate and autonomous legal identities for spouses and wives, and much of modern jurisprudence focuses on women's rights. In its report on criminal law reform in 2013, the Justice Verma Committee recommended that Exception 2 of Section 375 of the IPC be permanently abolished. This was the fundamental argument for making marital rape illegal in India. This concern is reflected in a number of legislation enacted since the turn of the century to protect women from violence and harassment, including "The Protection of Women from Domestic Violence Act" and "Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act".

In Independent Thought vs. Union of India, the Supreme Court of India, in light of the foregoing discussion, is clearly of the opinion that exception 2 to Section 375 IPC, to the extent that it relates to a girl under the age of 18, may be considered void for the following reasons:
  1. It is arbitrary, capricious, eccentric, and violates the girl's rights,
  2. It is not fair, unbiased, and reasonable, and thus in violation of Articles 14,
  3. It is in violation of the POCSO's conditions, which must be followed.

Constitutional Validity Of Marital Rape

Exception 2 violates the Indian Constitution's guarantee to equality by discriminating against married women by denying them the same protection against rape and sexual harassment. The exception divides women into two groups based on their marital status and protects males from acts committed against their spouses. As a result, the exception allows married women to be attacked purely because of their marital status, while unmarried women are protected from the same offences.

The distinction between married and unmarried women under exception 2 also violates article 14 because the categorization produced has no reasonable relevance to the law's underlying aim. In the Budhan Choudhary v. State of Bihar and the State of West Bengal v. Anwar Ali Sarkar, the Apex Court stated that any classification made under Article 14 of the Indian Constitution must pass a reasonability test, which can only be passed if the classification has a rational context for the claim's aims.

However, exception 2 is ineffective in achieving the goal of section 375, which is to protect women and punish those who engage in the barbaric act of rape. Exempting husbands from punishment goes completely against the law's stated intent. In other words, whether a woman is married or not, the repercussions of rape are the same.

Furthermore, because they are legally and financially obliged to their husbands, even married women may have a harder difficulty fleeing abusive situations at home. In actuality, Exception 2 encourages husbands to engage coercive physical interactions with their spouses, knowing that their actions will not be sanctioned by the law. Because no rational relationship can be made between the categorization produced by the exception and the law's underlying goal, it fails the reasonability test and hence violates Article 14 of the Indian Constitution.

Exception 2 is also a breach of India's Constitution's Article 21. Article 21 stipulates that:
No person shall be denied of his life and personal liberty except according to the procedure established by law.

The Supreme Court goes above and beyond. Instead, it has concluded that Article 21's rights include, among other things, the right to health, privacy, dignity, safe living conditions, and a safe environment.

In recent years, courts have begun to recognise the right to refrain from sexual activity and the right to be free of unwelcome sexual relationships as constitutionally protected rights to life and personal liberty. In the case law of Karnataka v. Krishnappa, the Supreme Court ruled that:
Sexual violence, in addition to being a dehumanizing act, is an illegal interference with a woman's right to privacy and sanctity.

The court ruled that non-consensual sexual interactions constituted bodily and sexual violence in the same sentence. The Supreme Court later declared in the case of Suchita Srivastava v. Chandigarh that the freedom to make sexual activity decisions was linked to the right to personal liberty, privacy, dignity, and physical integrity under Article 21 of the Constitution

More recently, Article 21 has clearly acknowledged the right to decide on physical relationships. The Supreme Court of India recognised the right to privacy as a basic right for all people in the case of KS Puttuswamy (Retd.) vs. Union of India, holding that the right to privacy is a fundamental right for all citizens, "reflects a purposeful privacy, which is reflected in the ability to make intimate decisions that consist primarily of a person's sexual or reproductive nature and choices regarding intimate relationships".

Forced sexual coexistence violates this fundamental right. The previous judgments do not distinguish between the rights of married women and single women, and there is no rule to the contrary that states that the person's right to privacy is lost through the marital union. The Supreme Court has recognized the right of all women, regardless of their marital status, to abstain from sexual activity as a fundamental right under article 21 of the Constitution.

Moreover, exemption 2 breaches article 21's right to a healthy and decent existence. As previously stated, Article 21's right to life is more than just a right to exist. For example, it is unarguable that all Indian citizens have a right to medical treatment and that the government is obligated to protect their health. In this view, courts have often found that the "right to life" encompasses the right to live a dignified life. The very presence of Exception 2, which allows husbands to have forcible physical relations with their wives, harms women's physical and mental health and impairs their capacity to live a dignified life.

The state has the right to pass special legislation to protect the interests of women and children under Article 15 (3) of the Constitution, but the state has not yet taken any action to prevent married women from being raped for their own husbands. The High Court of Calcutta decided in Sri Mahedab Jiew v. Dr. B B Sen that Section 375 Exception 2 of the Indian Penal Code, 1860, as a special provision for women, could not be protected under Article 15 (3) of the Indian Constitution since it discriminates against married women.

Even after so many judicial precedents in favour of women's rights to be free from sexual violence, a husband cannot be found guilty of raping his wife since the law does not allow it in the application of exception 2 to article 375 of the IPC. Surprisingly, these provisions of the constitution runs counter to women's fundamental rights under Articles 14, 15(3), and 21 of the Indian Constitution, necessitating immediate state intervention. According to state policy guidelines, Article 38 puts on the state the unavoidable obligation to provide social justice to the people.

Marital Rape In Context Of Other Countries

The testimony of marital rape of the former Supreme Court Judge of England Sir Mathew Hale in his treatise entitled The History of the Pleas of the Crown, in which he said:
"The husband cannot be held guilty of the violation that he himself has committed against his own legitimate wife because through their mutual consent and conjugal contract, the woman has given herself to her husband in this way, which she cannot deny".

This theory of marital rape has since been considered legal in all the British colonies. The husband's decision to have intimate relationship with his wife at all times took precedence, and the wife's consent and desire to engage in sexual practises were ignored. The concept of rape in the marriage of Sir Mathew Hale's testimony gives birth to Exception 2 of Section 375 of the IPC.

In the case law Eisenstadt v. Baird, the United States Supreme Court ruled that:
Married couples are not an independent entity with their own mind and heart, but an association of two people, each with a different intellectual and emotional mindset.

In the UK, marital rape was not a criminal offense before 1992, but things changed after the ruling of the House of Lords in R vs. R, in which the marital rape exception was considered irrational and further held that all non-consensual sexual activity in the relationship of marriage is also marital rape. This decision cleared the road for spousal rape to be made a crime in the United Kingdom. In the United Kingdom, a husband can be prosecuted for having aggressive sexual contact with his wife under section 1 of the Sexual Offenses Act 2003.

The marital rape exemption has been abolished in the UK and this was followed by the majority of common law countries. In the United States in 1993, all 50 states criminalized spousal rape, although the details of the crime of spousal rape varied from state to state. Australia criminalized the act of marital rape under section 73 (4) of the Criminal Law Consolidation Act 1953 and the law states that "It cannot be assumed that no one has consented to indecent assault by that other person by virtue of the fact that he is married to another person".

South Africa also prohibited the spousal rape exception under section 5 of the Family Violence Act 1993, which states that "Notwithstanding anything to the contrary in any statute or customary law, a husband can be convicted of raping his wife". In 1983, Canada also lifted the spousal rape exemption. The Supreme Court of Nepal in 2006 announced marital rape illegal for violating fundamental rights under its constitution. More than 135 countries have criminalized spousal rape through laws, statutes, etc. Apart from India, there are countries like Afghanistan, Bangladesh and some others that do not consider marital rape to be illegal.

Conclusion
Given the foregoing facts and findings, it is unsurprising that married women in India are compelled to engage in violent sexual interactions. These barbaric acts, such as marital rape, will not be prosecuted by husbands. Our society assumes that once two people married, the wife will give her husband unrestricted consent when it comes to sexual activities, but this is not the reality. The judiciary has evolved its views on women's rights and interests over time, and women today have equal rights.

The judicial acknowledgement of women's sexual privacy and bodily autonomy, as well as their permission to any sexual activity, has become critical. The state has also played an important role in establishing a legislative framework to defend women's rights and interests. Apart from these legislative advancements, only the outlawing of marital rape is critical and must be implemented immediately. Women's essential rights cannot be taken away because of their marital status.

Marriage is a sacred connection between two people in which both parties must be treated with respect, and a married woman's respect is depleted if she is compelled to have sexual interactions against her will.

The time has come for women to understand their basic human rights so that they can speak out against such heinous acts. Women must realise that being sexually molested is not their fate. Men must be taught to respect women in all aspects of their lives. For the time being, the state should explore implementing its own marital rape legislation, but given that this appears unlikely in the near future, the state should make the necessary adjustments to the IPC that might be used as a defence against spouse rape.

Rape in the marriage must be regarded as a reason for divorce. A woman should not be forced to spend the rest of her life with someone who treats her inhumanely. As a result, we can conclude that marital rape is a sort of sexual assault that must be removed from our culture as soon as possible.

Award Winning Article Is Written By: Ms.Sakshi Sinha
Awarded certificate of Excellence
Authentication No: MR208833948805-29-0322

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