Is Marriage a License To Rape?

                                                                            Marital Rape

Article 14 of the Indian constitution provide the equality before the law or equal protection of the laws within the territory of India and also Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, but there is a one sub section of the Indian Penal Code (in short IPC) make the inequality for the offence of Rape which is a most brutal and heinous crime against the body of a person. Rape is defined in section 375 of the IPC as under: -

Rape. -- A man is said to commit "rape" if he--

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:

First. Against her will.

Secondly.Without her consent.

Thirdly.With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.With or without her consent, when she is under eighteen years of age.

Seventhly.When she is unable to communicate consent.

Explanation 1. For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1. A medical procedure or intervention shall not constitute rape.

Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape

The inequality showing for that kind of heinous offence in the Exception 2 of the section 375 of IPC, which is clearly stated that if a husband did the above said acts to his wife against her will, not concluded as an offence under this section. From very long the women are treated as an object in the history of the world and also men are treated as the KARTA of the family and has all the rights to take decisions in the family. Our societal norms are not changed with time, now also there are number of women who are treated as an object or inferior then men in the society. There are many other laws which gives the hints of inequality between men and women like when a women do the same job on the same post in a company and the company is not paying her equal to her male colleagues. This article is on the marital rape so I should stick to the topic, but we will explain the other inequalities in further articles.

Now days the Indian Judiciary is taking necessary steps to remove this lacuna or inequality from the society which degrades the status of the women. In many recent judgements the Supreme court of India and various High court of India inclined towards the rights of women and establishing the equality with their judgements.

The recent judgement are as follow: -

1)     W.P.(C) 284/2015 & CM Nos.54525-26/2018:

In this judgement the bench headed by (HON'BLE MR JUSTICE RAJIV SHAKDHER and HON'BLE MR JUSTICE C. HARI SHANKAR) Delivered a split verdict while disposing of a bunch of pleas seeking criminalisation of marital rape. HON'BLE MR JUSTICE RAJIV SHAKDHER of Delhi High Court, who ruled in favour of striking down the marital rape exception, observed in his judgement that:

“the offence of rape is already defined in the substantive part of Section 375 of IPC. The sexual acts which are described in Clauses (a) to (d) of Section 375 constitute rape if they fall within any of the seven circumstances alluded to in the said provision. There are two exceptions provided in Section 375 and, thus, those who come within the ambit of the exception cannot be prosecuted for the offence of rape. The first exception concerns a circumstance where the woman undergoes a medical procedure or intervention. The second exception (which is the exception under challenge) concerns the act of sexual intercourse or sexual acts which involve a man and his wife who is not under 18 years of age. The exception clearly subsumes the main provision without providing a determining principle or rationale as to why husbands who have subjected their wives to forced sex should not face the full force of the rape law. Since the stated objective of the rape law is to protect women from sexual abuse of the worst kind i.e., rape, there is no perceivable rationale for granting impunity to an offending husband in the context of marital rape. Thus, if MRE is excised, all that would happen is, it would extend the ambit of Section 375 to even offending husbands.”

Also, he mentioned that MRE is violative of equality provided under Indian constitution and observed that:

“Apart from the fact that MRE, in my view, falls foul of the equality clause of the Constitution, it also violates Article 21 of the Constitution. The reason being that the offence of rape and injury caused remains the same irrespective of who the offender is. The fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading or dehumanizing. Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally. Rape, as an offence, deserves societal disapprobation in the strongest terms, notwithstanding, the fact that the rapist is in a marital relationship with the victim.”

In the para 163 of the judgement, he mentioned that

“Modern-day marriage is a relationship of equals. The woman by entering into matrimony does not subjugate or subordinate herself to her spouse or give irrevocable consent to sexual intercourse in all circumstances. Consensual sex is at the heart of a healthy and joyful marital relationship. Non-consensual sex in marriage is an antithesis of what matrimony stands for in modern times i.e., the relationship of equals. The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty which encompasses her right to protect her physical and mental being. Non-consensual sex destroys this core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate. While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred.”

These observations are provided in the judgement it self by the High Court of Delhi. The Indian society is in dire need to understand that women are also a human being and they should be treated equally among society, otherwise there is no difference between a society which treated women as an object and the modern era society.

 Read the full judgement . 

Advocate Sonu Vashist

Founder

Advicebiz (A business division of SSquare)

+917015840904

vashist@advicebiz.in

ssquaressp@gmail.com