Rape, one of the most heinous crimes in the world, can have the exception as well. Marriage is one such exception that protects the offender and subjects a woman as his property. Though this exception is not ubiquitous still India remains one of the 36 countries where Marital Rape is not recognized as a crime.*1 An exception of marriage under Section 375 of the Indian Penal Code exempts a man from indulging in sexual intercourse with his wife even without her consent. Currently, there is a plethora of cases lying pending in the Indian Judiciary in order to criminalize marital rape in India.
Indian Constitution guarantees every individual certain fundamental rights. These rights are fundamental because they are essential for the very existence of a person and at prima facie, we can see Marital Rape infringe them. One such right is Article 14 of the Indian Constitution which ensures that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” *2 The classification under Article 14 must be based on intelligible differentia i.e. difference capable of being understood. Also, the intelligible differentia must have a reasonable nexus with the object of the statue. Clearly, Section 375 infringes it by creating a special category of women based on her marital status which allows her husband to rape her. This category is not reasonable and can never be capable of being understood. Also the object of IPC is to punish the wrongdoer then how a husband having sexual intercourse without the consent of her wife cannot be considered as wrong?
Marital Rape also violates Article 21of the Indian Constitution which affirms that “no person shall be denied of his life and personal liberty except according to the procedure established by law.”*3 Article 21 is one of the umbrella right guaranteed by our constitution and has varied interpretations so far. The apex court has held in catena of cases that right to live with human dignity is intrinsic to Article 21 and the offense of rape abuses right to life. Even in the landmark case of The Chairman, Railway Board vs. Chandrima Das the Supreme Court observed that rape is not merely an offence under IPC but it is an offence against the society at large. The court ruled that it violates the right to live with dignity of the victim without any reference to marriage.*4
As a result the exception of marriage under section 375 infringes the right of the wife to live with human dignity. Recently in a milestone ruling, of the Apex court in the case of Justice K.S. Puttuswamy (Retd.) v. Union of India, right to privacy was recognized as a fundamental right and is intrinsic to right to life. It also held that Privacy includes at its core the preservation of personal intimacies, Sexual orientation, and Sexual preferences.*5 There are various other judgments that have recognized that a woman is entitled to her sexual privacy.
Every individual must be entitled to take decisions with respect to her sexual privacy even when that individual is a wife but clearly exception under section 375 does not entitle her and thus breach Article 21. Our constitution is our vehicle of life and its spirit is the spirit of the age. These laws were framed in a patriarchal society and in today’s age when we are heading towards wider perspectives of equality we need amendment in them. Marital Rape must be recognized as a grievous offense otherwise it will be a failure for our legal system. We must remember that rape is wrong which can have no exceptions; it must always be adjudged irrespective of marital status.
This Article is written by Ashutosh Chippa. He is currently pursuing his B.B.A.LL.B (Hons.) at I.C.F.A.I, Jaipur and he is in the second year.
REFERENCES:
1. Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar.12, 2016.
2. India Const. art. 14.
3. India Const. art. 21.
4. Chairman Railway Board v. Chandrima Das (2000) 2 SCC 465 (India).
5. Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161 (India).
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