Author: Reet Kaur Co-Author: Aditi Kesarwani
Rape is an ancient offense that has conventional punishment in the old Indian Penal Code of Macaulay, but this has escalated horrendously over the decade for the punishments the provision has remained static and the same has not turned up preventive for the nation at large. Law should grow as the society grow then only we can harmoniously construct our society under the umbrella. For any law, to be successful, there should be some recognition, then only society considers them as heinous, abusive, or wrong. Social recognition is a sine qua non before the legal decree of the law and order. Though marital rape is not considered as “Rape” as the presence of a spousal exception clause under section 375 of the Indian Penal Code, 1860 it can be considered a form of sexual violence against females as non-consensual or forced sexual intercourse by the victim's spouse. There can be a certain reason which has been manifold in various parliamentary debate viz. to protect the sanctity of the institution of marriage though violates the right of the woman.
In this, we depict how these arguments are erroneous. Through scrutiny of Article 14 and 21 of the Constitution of India, we argue that the exception provided under section 375 of the Indian Penal Code is irrelevant and unconstitutional. Further, discussing the lack of alternative measures vis a vis needs of criminalization of marital rape. In the end, authors would propose suggestions and amendments to criminal law.
criminalization of marital rape:
Marriage is a sacred institution that forms the substratum for the Indian society. This is viewed as the private matter and the state is hesitant to interfere with this delicate space. However, the denial of state to enter this private space may be problematic in a certain situation for instance if women are subjected to some sort of Cruelty or Sexual Abuse. There are various arguments placed forward by the Court and Non-Governmental Organization that favors the criminalization of marital rape. The marital rape as an exception is contrary to Indian laws which violate the constitutional mandate provided under the Indian Constitution. Furthermore, the exception violates India’s International Law obligations.
Allowing an exception to persist is irrational when looking at the greater sphere of National laws in India. Husbands can be held accountable for the lesser crime against their wives with an exception to rape. If all the other acts stated in the statute can be a crime then in a marital relationship, it is contradictory to imply that criminalization of marital rape is not feasible. And this violates the notion of Human Right Act, 1993 which state human rights to include Right to life with dignity, liberty, and equality. The court in Independent Thought v. Union of India propounded “force sexual intercourse with a child by her husband violates the protection of the human rights act”. The protection does not restrict itself to children but also any kind of forced intercourse with individuals violates the principle of human rights which is groundnorm of our constitution.
Conserving exception 2 of the Indian Penal Code, 1860 violates protection guarantee under article 14, and 21 of the Indian Constitution. Article 14 provides two facets ‘equality before the law’ and ‘equal protection of the law’. The main aspect of this is to bring about a more equal status and society as envisioned by the preamble and part IV of the constitution through jurisprudence. The test laid down under article 14 is violated by the notion of this exception. Firstly, an exception to rape by husband, secondly, treating children below 18 differently and this represents why the whole idea is unreasonable and has no nexus to it. And as such any law that violates the principle should be struck down. Supreme Court in the case State of Maharashtra v. Madhukar Narayan, it was recognized as sexual violence is the intrusion into the right to privacy of the female and every woman is entitled to sexual privacy under article 21 of the Indian Constitution. It also states the “right to good health”, one can interpret the breakdown it causes to women not only physically but psychologically. As article 21 bestows the idea of the Right to life with dignity.
India has also ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), and being a signatory of UDHR gender-based violence nullifies various other rights guaranteed under international treaties like the right to life with dignity, health, equality, and liberty. Article 2(b) of (CEDAW) mandate state to adopt all necessary legislation to eliminate all sort of discrimination against women. Under the obligation, states are required to keep appropriate track on these matters, investigate, act, and compensate with due diligence. As stating due diligence, it requires a very first step that is the criminalization of marital rape. Violence against women from the perspective of intimate partner violence has been recognized as the leading cause of death around the globe which violates the principle of the Right to life that is guaranteed under a universal declaration for human rights. Hence, legalizing Marital Rape violates women's right to privacy and equality guaranteed under Indian and International laws. And to give effect law should be passed criminalizing the exception of Section 375 of the Indian Penal Code.
alternative measures: selective silence
It is very evident that Rape is a predominant issue in today’s era and several actions need to be taken to combat its inescapability. The marital rape exception needs to be discarded, making rape in marriage a criminal offense, and efficiently eliminating marriage as a defense to rape. To annihilate this one needs to investigate another perspective that is economic, social, legal barriers. First and foremost, the government should annihilate this exception form Indian Penal Code and determine this as a criminal offense but at the same time, it should ascertain that what constitutes marital rape and what does not. Secondly, the state needs to strengthen its police system as many a time aggressive police practice is a hurdle for many women to approach. Lastly, states need to adopt certain guidelines or national policies to combat all kinds of stereotypes.
Section 498A of the Indian Penal Code, cannot be applied in the offense of rape as there is a wide demarcation between cruelty and rape. It is a most relevant alternative that is available with the Indian system but at the same time, we argue that this is inadequate in some manner. First, the nature of rape and distinguish itself from the offense of cruelty. Second, this provision as an alternative is not adequate. This section 498A is used as ‘dustbin’ where every marital rape case is ‘dumped’. Cruelty provides a maximum punishment of 3 years whereas, punishment for Rape includes the punishment for 7 years which can be extended as per the case. Section 498A provides an explanation for ‘cruelty’. This major demarcation between punishments again tells us the concept of cruelty cannot in any way deal with the offense of Marital Rape. Nevertheless, what would amount to cruelty is merely a question of fact and would fluctuate from case to case. There are no straight jacket formulae as to what constitutes ‘cruelty’. There are certain factors in a matrimonial relationship between husband and wife, their aesthetic and quality status in life, state of well-being, and their interaction in their daily life that would be relevant for ascertaining ‘cruelty’. Additionally, mental cruelty varies from person to person depending on the intensity of consciousness and the degree of courage or endurance to withstand such mental cruelty. It is still difficult to ascertain whether specific cases fall in the ambit of section 498A or not. The court in the case, where the husband used to have forced sexual intercourse with her wife inserted a stick and his figure in her vagina causing her severe pain and bleeding which made the victim unconscious even for such a harsh act court did not charge the accused under Section 498A of Indian Penal Code does not have specific nuance in the law as related to Section 375 of Indian Penal Code. Using section 498A each time is not a feasible alternative considering the struggle that women face. There is a dire need that we look into these issues and why there is dire need to criminalize the very concept “Marriage a license to rape”.
The debate on the very notion of marital rape is essential for establishing substantive equality for married women who are supposed to be confined in their homes. It is the major lacuna in criminal law at present that is defeating the constitutional mandates which give equal rights to every citizen. From the above one can continuously observe why there is a need to hour to criminalize the exception. We have established that how all arguments stand against the exception stated under section 375 of the Indian Penal Code. We have argued that section 375 remains unconstitutional as it fails the test propounded under Article 14 of the Constitution and violates article 21 of the Constitution. Furthermore, violating international norms and standards of which India is a part. Considering all the arguments stated above authors would like to propose a model for the same. Firstly, the exception clause to be amended as these violate the fundamental right, secondly, alternative measures to be available to women at the first place lastly, separate provision to be drafted and take into consideration the complexities of prosecution in the case.
 Indian Penal Code 1860 § 375.  Independent Thought v. Union of India, 2017 SC 800.  Indian Penal Code 1860 § 323-325, 354, 354A, 354B, 354C, 354D.  The Protection of Human Rights Act, 1993.  Independent Thought v. Union of India, 2017 SC 800  INDIAN CONST. art 14  INDIAN CONST. art 21  Sri Srinivasa Theatre v. Govt. of Tamil Nadu, 1992 SCR 164  State of Maharashtra v. Madhukar Narayan, AIR 1991 SC 207  CESC Ltd. v. Subhash Chandra, 1992 AIR 573  Maneka Gandhi v. Union of India, 1978 SCR 621.  UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendation No. 19: Violence against women, (1992)  CEDAW art. 2, cl. b  Randall & Venkatesh, U.N. SECRETARY-GENERAL, ENDING VIOLENCE AGAINST WOMEN 43-45 (2006).  Pranesh Prasad, A Strategy for Criminalizing Marital Rape in India, HUFFINGTON POST (Sept. 25, 2016), https://www.huffingtonpost.in/pranesh-prasad/a-strategy-for-criminalizing-marital-rape-inindia_a_21478727/ [https://perma.cc/DUS4-BX7A].  Randall & Venkatesh, U.N. SECRETARY-GENERAL, ENDING VIOLENCE AGAINST WOMEN 43-45 (2006).  Indian Penal Code 1860 § 498A. Ranjita Ganesan Proving Marital rape is Not Easy; It would be a Challenge for the Woman, BUSINESS STANDARD, April 23 (2016).  Mohd. Roshan v. State of A.P, 2002 SCC 414.  Sarojakshan Shankaran Nayar v. the State of Maharashtra, 1994 SCC OnLine Bom 385.  Bomma Ilaiah v. the State of A.P., 2003 SCC OnLine AP 38.