The judiciary must recognize marital rape as a crime under the Indian Penal Code (IPC), especially now that the pandemic-induced conditions have increased in domestic and sexual assault cases against women. Legislators have used this as a shield to protect the sacramental marriage institute. Now is the moment to revise the long-standing definition of rape.
If we look into the definition of section 375 it clearly shows that if a man allegedly rapes his wife as it is considered a permanent license, which doesn`t require the consent of women, who is below 15. Exception of section 375 reads as followed-Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape., which expressly consents to marital rape, as men allegedly consider wife and their bodies as an instrument in their hands.
Data records show that 31% of married women aged between 19-35 have suffered sexual assault. Out of 195 countries in total, only 140 have criminalized it whereas in other 55 countries like India, still marital rape is allowed. Marital rape is violative of Article 14, as it allegedly discriminates between married and unmarried women because section 375 only protects unmarried women from rape perpetrators. It defeats the purpose of section 375 as exception no-2 exempts husbands from rape, even though consequences on women physically and emotionally are severe. In the landmark case of supreme court Suchita Srivastava & Anr vs Chandigarh Administration, where it has been held that women have the right to make reproductive choices, as it comes in the ambit of article 21. It's critical to understand that reproductive decisions can be used to both procreate and refrain from procreation. The most crucial component is to respect a woman's right to privacy, dignity, and bodily integrity. This indicates there must be no constraints on a woman's reproductive choices, such as her ability to avoid sexual activity or her insistence on using contraceptive techniques.
In Rit Foundation vs The Union Of India, petitions were filed by NGO RIT Foundation and all India democratic associations in Delhi high court for declaring marital rape as an offense, which is presently an exception in IPC. The petitions were heard by the bench of Justices Rajiv Shakdher and C. Ravi Shankar. Marital rape violates article14, article 21, the right to live with dignity and violates the spirit of justice. Delhi high court, while hearing the petitions, appointed amicus curiae, Rajshekhar Rao, who is a senior advocate. He said that, when a woman is raped by a stranger, she is protected by law, however, the exception states that can't prosecute her husband if he commits rape .on reading of sections 376(2)and 376, Rao submitted that the law places a premium on relationships and greater responsibility on a person having fiduciary relationships .he pointed out for exception to be revoked .
Rao believes that legislature may take the shield of culture and family and may work at a sluggish rate, and it would be prudent for the high court to step in and quash this provision under article226. Rao argued that multiple courts have repeatedly concluded that rape dehumanizes a women`s existence and each day this provision stays as a block because a proportion of the population is denied the ability to pursue rape cases against husbands. Delhi high court held that different relationships between parties, cant` put the same offense on a different pedestal. they must look into this question of fact. Rao also gave an example of dividing the relationship of a couple into three stages; courtship, engagement, and separation. during courtship, if a man allegedly raped a woman, she can go to court of law but as soon as she is married, she can't go, when the act is against her will and without consent. during engagement as well as separation, Section 376B gives her the right suddenly again to prosecute for the act of rape, during judicial separation.
.Apart the submissions made Apart from the submissions created by amicus curie, advisor of the court, the Court conjointly heard 2 intervenors opposing the batch of petitions.
one among the opposing petitions was created by advocate Raj Kapoor. He pleaded that considering the overall scenario of Indian society, statutes, and penalization, an exception to Section 375 of IPC, should be maintained, and also the necessity and duty of amending legislative statutes are on parliament. furthermore article 14 permits reasonable classification, therefore throughout, judicial separation, action can still lie against the perpetrator. If the exception is stricken down, the husband would be in an exceedingly worse position than the case coated beneath Section 376B. Such a husband would be subjected to harsh punishments and will not get advantages beneath the probation of offenders act. Moreover, he argued that India needn't copy-paste western trends .
Another party, Ritwik Bisaria, associate degree engineer by profession, showing for Men Welfare Trust, suggests his submissions. He said that article 14 doesn`t mandate equality within same laws, that petitioners claim in the petitions. Moreover, Delhi Government submitted that the exception to Section 375 of IPC concerning non-criminalization of matrimonial rape doesn't leave married woman helpless, she will be able to resort to divorce and maintenance. Delhi court has conjointly appointed advocate Rebecca john as amicus curie, further proceedings. Rajshekhar Rao explains in court that rape is a rape and a rapist is a rapist, no amount of classification based on relationships can be used as a defense. Rao submitted that the foundational basis of Section 375 is consent and therefore the penalization is as a result of doing the act without consent. He submitted that the act of non-consensual rape is repugnant and inherently offensive of the fundamental right to life and liberty secured by Article 21 in any context. Citing the judgment of the Supreme Court in Moti Lal vs. the State of M.P ., Rao submitted that the rape is that the infliction “not simply of a physical injury however the deep sense of some undying shame, and causes deep psychological, physical and emotional trauma thereby “degrading the terrible soul of the victim”. These are, arguments of Rao. The IPC itself recognizes the act of being perpetrated by a person in a “position of trust” i.e. Sec 376(2)(f) or “in a fiduciary capacity” i.e. Sec 376C, is more egregious than one done by a stranger.
To my opinion, Amicus Curiae, supporting that exception 2 shall be struck down from section 375 is upright in the interest of public spirit and justice as marriage doesn’t mean only consent for sex . Classification based on marital status, giving married women less protection as compared to unmarried women is arbitrary. Denial of her right to prosecute her husband for the forced act is crucification of human rights because consequences on women are grave and irreversible to a large extent.
Absolutely, denial of such a remedy to a woman who has been abused or raped merely on the ground that the perpetrator is her husband, is absurd and in no way logical. Protecting the sacred concept of marriage should not come in the way of an individual freedom and their basic rights. Such a provision goes against the basic human rights every person should have. Consent is consent and should be required, even if the two people are married.
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