Us women

INDIA AND MARITAL RAPE

"I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a woman to hate her husband, I would hate him as a rapist. "

-Philippa Gregory, The Red Queen

There is no oddness to the gospel truth that India is a patriarchal institution in which women are undervalued, objectified, satirised, and viewed as the weaker portion of society. Gender-based crimes have increased as our country progresses toward modernization. The number of domestic abuse complaints received by the National Commission for Women increased dramatically from 2,960 in 2019 to 5 in 2020. The fourth most prevalent crime against women is still rape. According to the National Crime Records Bureau's (NCRB) annual report for 2019, 32033 rape crimes were reported across the nation, an average of 88 incidents per day, with 30,165 rapes perpetrated by offenders known to the victim.

Rape is defined under S. 375 of the Indian Penal Code, 1950, which states that "rape" occurs when sexual intercourse takes place without a woman's consent or against her will. S. 90 defines consent as—Assent under a misunderstanding of fact—Sexual indulgence by the accused with the victim's consent given under a misunderstanding of fact falls within the ambit of rape. Through its decision in Deepak Gulati v. State of Haryana, 2013, the judiciary went so far as to criminalise sexual intercourse under the false pretence of marriage, holding that intercourse under the promise to marry constitutes rape if the accused had no intention of keeping his promise from the start, his intentions were mala fide, and he had clandestine motives. However, it's cynical that, in these changing times, when promoting the interests of women and prioritising their safety is claimed to be a top priority by our legislators, they've failed to recognise the heinous act of Marital Rape as a crime despite widespread condemnation, upholding the validity of Exception 2. of S.375, which specifies that a man's sexual intercourse or sexual actions with his wife, provided the wife is not under the age of fifteen, is not rape. After the ruling in the historic case of Independent thinking vs. UOI, 2017, in which the Supreme Court read down exception-2, which is distinct from striking down, the age was raised to eighteen years.

The IPC was written in the 1860s, in a period when a married woman was seen as her husband's chattel rather than an autonomous legal entity. As a result, she did not possess her own rights,

including the ability to submit a lawsuit in her own name. It can be observed that Exemption 2— where a husband conducting sexual intercourse with his wife without her agreement is not criminalized—is primarily drawn from the already existent theory of integrating the woman's identity with that of her husband, referred to as the "Doctrine of Coverture." The origins of this ideology may be traced back to British colonial control in India during the Victorian era, when the country's laws were inspired by English Patriarchal Laws, which did not treat women and men equally. The United Kingdom (Britain) did, however, prohibit marital rape or spousal rape as a sexual assault in 2003 with the Sexual Offences Act, 2003. Nebraska was the first state in the United States to ban marital rape in 1975, followed by the remaining states, and marital rape has been illegal in all 50 states since 1993. Argentina, Australia, Brazil, Canada, Dominican Republic, France, Greece, Hong Kong, Iceland, and a number of other countries have made marital rape a criminal offence with severe penalties. Surprisingly, India is one of just 36 countries that has not made marital rape illegal.

Through their decisions in different historic cases, learned judges have consistently referred to the barbaric gravity of this exemption. They saw marital rape as a climax of sexual abuse and domestic violence, and it was deemed a violation of Article 14 (Right to Equality) and Article 21(Right to life and dignity, which also includes the right to privacy). The right to life under Article 21 was defined in Bandhua Mukti Morcha v. U.O.I as the right to live in dignity, free of exploitation. In Bodhisatwa vs. Ms. Subdhra Chakroborty, the Supreme Court declared "rape" to be an offence that violates a person's Fundamental Right protected under Article 21 of the Constitution. The Supreme Court held in The Chairman, Railway Board v. Chandrima Das that rape is not only a criminal violation under the Indian Penal Code, but also a crime against society. The Supreme Court ruled in The State of Karnataka v. Krishnappa that "sexual assault, apart from being a degrading act, is an illegal infringement of a female's right to privacy and sanctity." Non-consensual sexual intercourse was also deemed to be a kind of physical and sexual assault. The Supreme Court in Nimeshbhai Bharatbhai Desai vs State Of Gujarat observed— marital rape as a disgraceful offense that has scarred the trust and confidence in the institution of marriage. It is a non-consensual act of violent perversion committed by a husband against his wife, in which the wife is physically and sexually assaulted. Later, in Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution. The Supreme Court recently recognised the right to privacy as a fundamental right of all citizens in Justice K.S. Puttuswamy (Retd.) v.

Union of India, holding that "decisional privacy reflected by an ability to make intimate decisions primarily consisting of one's sexual or procreative nature and decisions in respect of intimate relations" is included in the right to privacy. Forced sexual cohabitation is a violation of that fundamental right. It has been held in judgments such as Budhan Choudhary v. State of Bihar and State of West Bengal v. Anwar Ali Sarkar that Exception 2 defeats the object of Section 375, which is to protect women and punish those who participate in the barbaric crime of rape. Exempting husbands from penalty is diametrically opposed to that goal.

CONCLUSION

The times have changed and there should be no disparity between women and men. Women should no longer be relegated to domestic duties or treated as the property of their husbands. Instead, they should be treated as separate legal entities with equal rights and status in society. In the current context, non-criminalization of marital rape is not only unnecessary, but also harmful, as seen by its inconsistency with legislation such as the Protection of Women from Domestic Violence Act of 2005 and the Protection of Children from Sexual Offenses Act of 2012, for assuming the permission of minors who are legally unable to provide consent while ignoring the absence of consent of women who are legally competent to give consent. Even the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), of which India is a signatory, has observed that this kind of discrimination against women violates the principles of equality of rights and respect for human dignity. Further, the Commission on Human Rights, at its fifty-first session, in its Resolution titled "The elimination of violence against women", recommended that marital rape should be criminalized. Rape is one of the most heinous crimes against women and it should be criminalized in all forms, no matter who the perpetrator is.

FOOTNOTES

1.   Bhavana Nair, Chairman Railway Board v. Chandrima Das, https://indianlawportal.co.in/ chairman-railway-board-v-chandrima-das/ ( last visited July 8, 2021)

2.   Sarthak Makkar, Marital Rape: A Non-criminalized Crime in India , https://harvardhrj.com/ 2019/01/marital-rape-a-non-criminalized-crime-in-india/ ( last visited July 8, 2021)

3.  S. 375, the Indian Penal Code https://legislative.gov.in/sites/default/files/A1860-45.pdf (last visited July 8, 2021)
4. POSCO Act 2012, https://wcd.nic.in/sites/default/files/POCSO%20Act%2C%202012.pdf (last visited July 8, 2021)
5. Protection of Women from Domestic Violence Act of 2005, https://www.indiacode.nic.in/ bitstream/123456789/15436/1/ protection_of_women_from_domestic_violence_act%2C_2005.pdf ( last visited July 8, 2021)
6. United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), https://www.un.org/womenwatch/daw/cedaw/ ( last visited July 8, 2021)

7.        Statistics of Rape, National Crime Records Bureau, https://ncrb.gov.in/en/search/node/Rape , ( last visited July 8, 2021)

8.       When did marital rape become a crime in UK? ,https://www.theweek.co.uk/98330/when-did- marital-rape-become-a-crime, ( last visited July 8, 2021)

9. Deborah C. England, The History of Marital Rape Laws, https:// www.criminaldefenselawyer.com/resources/criminal-defense/crime-penalties/marital-rape.htm , ( last visited July 8, 2021)

Caselaws:

1. Deepak Gulati v. State of Haryana, 2013 SCC (7) 675
2. Independent thinking vs. UOI, 2017 SCC (10) 800
3. Bandhua mukti morcha vs UOI and ors., 1984 SCC (3) 161
4. Bodhisatwa vs. Ms. Subdhra Chakroborty, 1996 SCC (1) 490
5. The Chairman, Railway Board v. Chandrima Das, 2000 SCC (2) 465
6. Nimeshbhai Bharatbhai Desai vs State Of Gujarat, 2018 SCC OnLine Guj 732, [104] 62

7.          .Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1

8.          .Justice K.S. Puttuswamy (Retd.) v. Union of India, 2017 SCC (10) 1

9.           .Budhan Choudhary v. State of Bihar, 1955 SCR (1)1045

10.    State of West Bengal v. Anwar Ali Sarka AIR 1952 Cal 150