Marital Rape Case : Split in Judgements

Judgement in Marital Rape case which place in Delhi High Court sees splits.
- As per Justice Rajiv Shakdher struck down Exception II that protects men who have non – consensual intercoursce with their wives from criminal prosecution under Section 375 IPC .
- Justice C Hari Shankar upheld the validity of the controversial provision saying the exception does not violate Article 14 , 19 and 21.

What is Marital Rape ?
- Sexual intercourse with one’s spouse without the latter’s agreement or assent can be classified as “marital rape” or “spousal rape.”
- When a woman refuses to consent to unwanted sexual intercourse, a man will usually use force, the threat of force, or actual violence against her.

Domestic violence affects over 70% of Indian women.
According to the National Crime Records Bureau’s ‘Crime in India’ 2019 report, a woman in India is raped every 16 minutes, and she is subjected to brutality by her in-laws every four minutes.
More than 100 countries around the world, including Nepal and Thailand, consider marital rape to be a crime.
However, in India, marital rape is not a crime, and it is one of only 36 countries in the world where it is not.
Data from National Family Health Survey (NFHS-5)
- According to the National Family Health Survey (NFHS-5), over 24% of Indian women have experienced domestic or sexual violence; this is certainly an underestimate, as much of it goes unreported.

Because marital rape is not a crime in India, there is no special legislative mechanism to deal with it. Instead, marital rape is solely dependent on judicial findings.
“Marital rape” is specified as an exemption clause in Section 375 of the Indian Penal Code (IPC),1860, which states that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.”
Under Section 376 of the Indian Penal Code (IPC) the punishment for Marital rape is 2 years with a fine or with both if spouse is not under 12 years old.
Women in India, on the other hand, can file charges against their husbands for marital rape based on cruelty or domestic violence and get judicial separation (divorce).

Violation of the Right to Live with Human Dignity
- Marital rape is violation of Article 21 which is mention in Fundamental Rights that deals with right of a woman to live her life with human dignity.
- Famous Cases and Outcomes
  - Chairman, Railway Board v. Chandrima Das – In the historic judgement of Chairman, Railway Board v. Chandrima Das, the Supreme Court of India also decided that rape is a crime against society as a whole, not only an offence under the Indian Penal Code.
  - Bodhisattwa Gautam v. Subhra Chakraborty – The Court decided that rape is less of a sexual offence than a display of hostility aimed at corrupting and humiliating women. As a result, the marital exception concept infringes on the spouse’s right to live in dignity.

Violation of the Right to Sexual Privacy
- The Indian constitution does not clearly address the right to privacy. The Supreme Court, on the other hand, believes that a right to privacy is inherent in the scope of Article 21.
- Related Cases
  - Maharashtra v. Madhukar Narayan – The Supreme Court ruled in the case of the State of Maharashtra v. Madhukar Narayan that every woman has the right to her sexual privacy, and that anyone can breach that privacy whenever they want.

Violation of the Right to Bodily Self- Determination
- Every individual has the right to make decisions about his or her body. Similarly, a woman’s decision to have sex or not, as well as whether or not to provide consent, is one of the most personal decisions she makes. It is a natural right to express oneself.
- When it comes to rape, the concept of marital exclusion under Section 375 of the Indian Penal Code (IPC) is a form of interference in her right to decision-making, infringing on her right to freedom of expression (Article 19).

Violation of the Right to Equality
- In India, the handling of rape and marital rape under Section 375 of the Indian Penal Code, as well as the differing sentences granted for both under Section 376 of the Indian Penal Code, breaches the principle to equality before the law (Article 14).

Under Articles 14, 15, 19, and 21 of the Constitution, marital rape is a violation of several fundamental rights.
A husband’s rape is more emotionally and physically traumatic than a stranger’s rape. When a woman is raped by a stranger, she is forced to live with the rapist, but when she is raped by her husband, she is forced to live with the rapist.
Marital rape is a crime in over 150 countries, including the United Kingdom, which common law India followed throughout the colonial period.
Marriage is a permanent equal-relationship social contract, not a one-time agreement to everything.
Men have an uneven advantage because of the legal exception to the rape laws.

The determination of whether or not consent was obtained is highly subjective and complex.
If marital rape is criminalized without proper safeguards, it could be utilized by disgruntled wives to harass and abuse their husbands, much like the current dowry law.
It will add to the load on the judiciary, which could instead be used for other essential causes.

Government enacted Protection of Women from Domestic Violence Act, 2005’ to protect women from domestic violence
Dowry Prohibition Act, 1961
The Prohibition of Child Marriage Act, 2006’.
The Ministry of Home Affairs has launched the “National Database on Sexual Offenders” (NDSO) to help law enforcement authorities investigate and track sexual offenders across the country.
A single emergency number is provided by the Emergency Response Support System (ERSS).
‘One-Stop Centre’ provides women who have been victims of violence with integrated services such as medical assistance, police assistance, legal assistance, psychosocial counselling, and temporary support services.

Content Source : New Indian Express