‘A Socially Sensitized Judge is Better Statutory Armor against Gender Outrage, than Long Clauses of Complex Section with all the Protections written into it.’
Marriage is considered a sacrament by Hindus. It is the last of the 10 sacraments in the Hindu religion for the regeneration of men and is obligatory for every Hindu who does not desire to adopt the life of a sanyasi. Among Hindus, marriage is a necessary sanskar and every Hindu must marry. It was never a contract because divorce was never heard of. The status of Patni was of a Dharam Patni (Better Half), where she completed the man in totality as per the Hindu ritual. However, where polygamy was permitted to Hindus which got abolished through the Hindu Marriage Act of 1955, the word divorce too crept in. Has Hindu marriage today become a mere contract and do we need to understand and define Marriage in the same context? Laws got framed protecting the lady and the mere fabric of a Holy Union became a piece of Parchment. Somewhere in the maze, of the legal statutes, the Marital Rape provided limited protection till the age of Fifteen Years to the wife. The reverence of a woman in Indian society witnessed a 360-degree change, in the eyes of the beholder from a goddess to a mere object for satisfying the domestic and sexual needs of the husband. She became a mere property of her father (honour killing) after her marriage to her husband.
Marital rape is the act of having sex with one’s partner without the consent of such a partner. Lack of consent is an important factor and may sometimes involve physical violence. Although, marital rape is considered a form of domestic violence and sexual abuse and is a reason for divorce as such it is not punishable. Although, historically, sex in marriage was viewed as a right of the spouse, engaging in illicit sex is now widely regarded as a global rape, recognized by international treaties, and increasingly criminalized.
According to Article 27 of the Fourth Geneva Convention, “Women shall be especially protected from any criminal attack by force, especially from rape, forced prostitution, and any other form of indecent assault.” It was not until the 1990s that the world awoke to the reality of this fact and began to conduct discussions and discussions around the world.
In many lands, it is not yet clear that marital rape is linked to normal rape laws, but in some lands, there is a criminal code that can be enforced under normal law to prevent violence, such as abuse and assault. BUT NOT ANOTHER RAPE.
Is Marital Rape punishable under IPC 375 and 376: The answer is NO. IPC rape
according to IPC, is defined, as penetration of the penis or any part of the male body that enters any part of a woman’s body against her will and is called rape outside of these seven cases. If she is in a state of denial and subject to rape by her partner, she can file an FIR, under IPC 498 (a) for domestic violence, and physical abuse but she has no protection against rape cases. Ironically, IPC 375 provides protection for a prostitute, from sexually abusing her body, but a married woman has no such freedom without the Constitution which speaks of the Right to Life, her right to privacy and the Right to Equality. The same reason is that in the language of dialogue you are the property of the man you married. Ironically, if a man sees his wife in bed with someone else, and then kills his wife unintentionally, the defendant will receive a lower penalty for using outside Gravest Provocation as described in IPC 304.
In Bishnudayal v. State of Bihar AIR 1981 SC 39, where the victim is a girl of 13 or 14 years of age, who was sent by her father to attend to look after her elder sister for some time, while she was forcibly ‘married’ to the appellant and he had sexual intercourse with her, the accused was held liable to commit rape under section 376 of IPC. Though, under section 376B of the Indian Penal Code, sexual intercourse with one’s own wife without her consent during the time when a decree of judicial separation is granted is also punishable by 2 to 7 years imprisonment.
In RTI Foundation v. Union of India in 2018, the Central Government pleaded to the Hon’ble Delhi High Court that Criminalizing Marital Rape may weaken the institution of marriage. They further submitted that merely deleting the exception of marital rape will in not serve any useful purpose as it’s the man who is said to commit ‘rape’ as defined under Section 375 of IPC. The difficulty is that there is no conclusive evidence that the court will rely upon in such cases of sexual acts between the man and his wife.
Inferring from the case of Independent Thought v. Union of India, decided by the Hon’ble Supreme Court of India dated 11 October 2017, looking at the above discussion, I have a clear view that Exception 2 to Section 375 IPC so far as it relates to a girl under the age of 18 may be punished for the following reasons: –
(i) It is arbitrary, negligent, ridiculous and violates the rights of the girl child and is unfair and unreasonable in violation of Sections 14, 15 and 21 of the Constitution of India;
(ii) It discriminates and violates Article 14 of the Constitution of India.
(iii) Does not comply with the provisions of POCSO, which must be successful.
Bodhisattwa Gautam v. Subhra Chakraborty court held that rape is to a lesser degree a sexual offence than a demonstration of hostility gone for corrupting and mortifying the ladies. In this manner, the marital exception principle is violative of the spouse’s entitlement to live with human dignity.
These four judgements have three different views but the best part is that there have been positive thoughts on the same.
A Bench of Justices J.B. Pardiwala and Niral.R. Mehta noted in their order dated 14.12.2021 that “it is high time that a writ court undertakes the exercise of considering whether Exception 2 to section 375 of the IPC could be termed as manifestly arbitrary and makes a woman’s fundamental right to sexual autonomy subject to the whims of her husband. There are many other larger issues raised in the present litigation which need to be considered in detail. In the light of these submissions, the High Court in its order notes that it is high time a writ court undertakes the exercise of considering whether Exception 2 to section 375 of the IPC could be termed as manifestly arbitrary and makes woman’s fundamental right to sexual autonomy subject to whims of her husband.
The order has directed that the notice be issued to the Attorney General of India and the State of Gujarat.
It is indeed unfortunate in our society that educated men indulge in the same. Lack of openness to talk about sex is the root cause of this problem. The literacy rate of the country has increased over the decades, but unfortunately, the issue of social-behavioural aptitude has decreased a lot. Who is to be blamed? Man, to prove his dominance at times and womanuse the law to her advantage to get herself the superiority over men.
Going back to my quote, a judge knows if the crime has been committed or not and all the wait is for that piece of evidence to prove the same who is wrong.
Wife rape is the consequence of two very serious primarily male problems –
violence and predatory sexuality. Wife rape is a manifestation of male sexuality, which is oriented to conquest and domination, to prove masculinity defined in terms of power superiority, competitiveness, control and aggression. A real man is supposed to get what he wants, when he wants, particularly with his wife and even more particularly, in his sexual relations with her.
The amalgamated picture of the rapist husband reveals jealous, officious individuals, who feel a sagacity of entitlement to have sex with their wife on whom anger, despair, and frustration can be burst out and dominance and intimidation can be exercised – all in a permitted legal sphere. Marital rape is utmost likely to occur in relationships branded by other forms of violence.
I am sure the audience,here will agree with me at this point that nothing can be more heinous than losing the right to say NO, to her closest friend in life and then not being able to punish him for that crime.
Col. Chanjeet Gauba
Student, LLB(H)
