Authored By: Sneha Sharma
Himachal Pradesh National Law University, Shimla
ABSTRACT
The law of Indian rape is based on the concept of consent. Consent is the main principle of lawful sexual relations as Catharine A. MacKinnon notes because the law realizes that a sexual intercourse is not right unless there is free and voluntary consent on the part of the involved parties as it is an interference with bodily integrity and human dignity. But this principle is ironically suspended in marriage. Exception 2 to Section 375 of the Indian Penal Code provides that by non-consensual sexual intercourse of a husband with his wife, the definition of rape does not apply, and therefore the status of the marital relationship takes precedence over consent, i.e. that an act which would be rape two seconds before the marriage suddenly becomes lawful two seconds after. Such blinding inconsistency invalidates the idea of bodily autonomy and exposes married women to sanctioned sexual violence.
The Supreme Court in Independent thought v. Union of India, have challenged the principle of implied marital consent and have noted that consent can never be assumed or opposed by marital status. The Justice Verma Committee and the changing constitutional case laws uphold and reiterate that the marital rape exception is unreasonable classification, breaches equality on Article 14 and infringes personal liberty on Article 21. The exception legitimises sexual violence within the domestic setting and therefore reflects gender inequality, which is contrary to constitutional morality. The Indian law should be able to assert that marriage does not cancel the need for consent and that each person, regardless of whether he or she is married, deserves dignity, autonomy, and protection against sexual violence.
INTRODUCTION
Sexual autonomy is based on consent and the rape statute. In Indian criminal jurisprudence, the sexual intercourse without free and voluntary consent is known to violate bodily integrity, dignity, and personal liberty. As the Article 21 was extended, the autonomy, privacy, and decisional freedom have been identified as the key areas of the rights of an individual, and it has been pointed out that each individual has the right to deciding on what is done to the body.
However, there is an exception of marriage. Exception of the Indian Penal Code, Section 375 in the clause 2,1 is the non-consenting sexual intercourse between a husband and his wife that is not considered rape on the condition that she is over eighteen years old. This legal clause is based on an archaic assumption that marriage means continued consent of one to another, which actually presupposes that the matrimonial status trumps individual autonomy. The law, by giving more priority to cohabiting rather than consent, legalises sexual violence in the most intimate of all spheres, and removes the dignity and freedom of married women.
According to Independent thought v. Union of India,2 together with the suggestions of the Justice Verma Committee has noted the dire necessity to put into question this exception. Marital rape should be a criminal offense, not only due to the need to adhere to the law, but also the constitutional need to implement equality, dignity, and human rights to every human being, regardless of whether they are married or not.
LEGAL FRAMEWORK
The main point of rape with consent is developed in the Indian Penal Code of Section 375,3 which admits that the idea of sexual intercourse without free and voluntary consent is a breach of bodily integrity, dignity, and autonomy. The amendment of the Criminal Law, 2013 made it clear that consent should be unconditional and voluntary, which reinforced the idea that sexual autonomy is inadmissible. However, the legal exception of 2 to 375 makes the consent irrelevant in marriage, which brings a legal contradiction: a husband is not criminally responsible to have sexual relations without the consent of his wife. This clause carries on the archaic belief that cohabitation in marriage allows access to sex which is, in effect, justifying sexual violence that follows in the most private domain of life.
Despite the fact that the Protection of Women against Domestic Violence Act, 20054 acknowledges the existence of sexual abuse in marriage, civil solutions are given. It sends a dangerous society message, that sexual violence in marriage is not a constitutional crime of autonomy and dignity, but a personal issue. These legal contradictions undermine the protective role of criminal law and expose married women to it.
JUDICIAL INTERPRETATION
The slow, uneven development of judicial treatment of marital rape. In Harvinder Kaur v. Harmander Singh5 the Delhi high court took an attitude of non-intervention here, which means that since the articles 14 and 216 were not supposed to interfere with the domestic arena of marriage. This premature reservations represents the judicial timidity towards challenging the socio-cultural orthodoxy that protects the sexual violence in marriage against questioning.
After that, in Bodhisattwa Gautam v. Ms. Subhra Chakraborty7 the Supreme Court recognised the fact that rape is a crime against Article 21 as it destroys the dignity of a woman and challenges her rights to life. Although the case did not directly address marital rape, it strongly proved that sexual violence is a constitutional evil to guarantee the principle that the body autonomy is important and cannot be superseded by social or family norms.
The case of Independent thought vs. Union of India8 the Supreme Court interpreted exception clause 2 to criminalize the sex intercourse with minors who are wives and dismissed the doctrine of implied consent in marriage. Although the Court did not go as far as to criminalise adult married women, it strongly indicated that marital status can not necessarily void consent. The decision highlighted the conflict between law, constitutional morality and the governmental shift in social norms, and questioned the underpinning of the marital rape exception.
RECENT DEVELOPMENTS
The Nirbhaya case in 2012 triggered the national awareness of the ubiquitous presence of sexual violence and the inefficiency of current legal systems. The Justice Verma Committee clearly supported the criminalisation of marital rape with the important point that marriage could not be irrevocable consent. Nevertheless, reform of the legislation still has not been provided, millions of married women are not covered by criminal laws.
The Union Government has opposed criminalisation using the possible abuse and the need to keep the institution of marriage intact. Nevertheless, gender justice, human dignity and constitutional morality require a change: the law should clearly make the consent the primary value, rather than marital status, and no person should be subjected to sexual acts against his/her will, regardless of spousal relations.
SUGGESTIONS AND WAY-FORWARD
- Repeal Exception 2, Section 375 IPC:
Consent has to be non-negotiable, marriage should not be a legal defense to sexual violence. The legislation must acknowledge that no one can be coerced into engaging in sexual activities irrespective of whether they are married or not.
- Constitutional Sexual Autonomy:
The courts are supposed to clearly state that sexual autonomy on marriage is safeguarded by Article 21 and that infringement amounts to infringement of fundamental rights.
- Gender-Sensitisation and Institutional Reform:
Policy, judiciary, and support institutions should be subjected to an extensive training to be able to address marital sexual violence with sensitivity, urgency, and accountability.
- Public Awareness and Education:
Legal reform should be supported by countrywide campaigns to break the social constructs that keep perpetuating marital sexual violence and that consent is necessary in all relationships.
CONCLUSION
The marital rape exception of the Indian law is one of the most conspicuous contradictions of the criminal jurisprudence. It is essentially giving sexual violence in the most intimate and personal life area a green light by prioritizing marital status over consent. This is a legal anomaly that deprives married women of the basic rights of autonomy of their bodies, dignity and equality that Articles 14 and 21 of the Constitution promise them. The law also creates a culture of gender inequality by demonstrating that marriage is a tool of coercion, not only at the individual level but also at the structural level, since it sends the message that the rights of married women are subject to negotiation.
From Bodhisattwa Gautam v. Subhra Chakraborty to Independent Thought v. Union of India together with the suggestions of Justice Verma Committee have raised the issue of the pressing need to question this exception. They reaffirm how marriage is not a defense against the commission of any acts that involve sexual violence and consent is not presumed or irrevocably lost by being married.
Criminalisation of marital rape is not, therefore, just a policy reform, but a constitutional requirement. It is imperative to ensure that the criminal law is aligned with constitutional morality to safeguard women, maintain gender justice and propose that all people, irrespective of their marital status, have the sacred right to own to their own bodies and sexual autonomy. The only way that equality and dignity in marriage can be achieved is by the law being categorical in its acknowledgement of the fact that coercion in marriage relations is an offense subject to punishment. This is the moment when the Indian law is supposed to reflect this reality and marriage is supposed to be a place of respect, consent and equality, rather than oppression.
Reference(S):
1 Indian Penal Code, No. 45 of 1860, § 375 Exception 2 (India)
2 Independent Thought v. Union of India, (2017) 10 SCC 800
3 Indian Penal Code, No. 45 of 1860, § 375 (India)
4 Prohibition of Child Marriage Act, No. 6 of 2007, § 2(a) (India)
5 Harminder Kaur vs. Harmander Singh AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187
6 India Const. art.14.21.
7 Shri Bodhisattwa Gautam vs Ms. Subhra Chakraborty, 1996 AIR 922, 1996 SCC (1) 490
8 Independent Thought v. Union of India, (2017) 10 SCC 800
