The LAW Learners
MARITAL RAPE- ACT AGAINST HUMANITY
Akansha Anand, Student, FIMT School of Law, GGSIPU
“He pushes me on the bed and jumps on me as if making love to him wasn’t an option but an obligation”
~SIMAR SINGH (THE LEGAL RAPIST)
From Historical India, women have been always treated as the property of males. Before marriage a woman was considered the property of her father then after marriage, she was considered a property of her husband. No rights were given to her by society as well as law. Women have always taught that she has treated her husband as a god, has to worship him, and support him whatever he does. But over time, the legislature made many laws regarding women, to provide them equality, provide the opportunity.
Now at this time, in this phrase most of the feminists are raising their voice against various evils of the society which are against them, a crime like marital rape is still a heinous crime that has been remaining in the male dominate society. Therefore, it clearly shows that in the era of human rights recognition, the existence of a woman is still not recognized.
MARITAL RAPE IN INDIA - LEGAL POSITION
In Indian laws, Rape has been defined under Section 375 of Indian Penal Code, 1860 and one of the exceptions of this section state that the woman who is married and she is not less than 15 years of age has sexual intercourse with her husband against her will is not rape. Even the amendment of 2014 doesn’t provide recognition to the marital rape.
Therefore, in Indian laws, no effort has been made to give protection to a married woman from un-consensual intercourse by her husband. Yet she does not have any physical right or sexual autonomy. The present scenario is showing that it is hard and there is no hope of future changes for the recognition of marital rape of an adult woman. Society considers it a less serious issue but in actual it is a heinous crime that should be recognized.
The Supreme Court of India has got many petitions regarding the constitutionality of exception 2 of Section 375 of Indian Penal Code, 1860. Most recently in the case of Anuja Kapur v. Union of India, a PIL was filed by the petitioner ‘Anuja Kapur’ to High Court of Delhi, requesting to make an appropriate guideline or law for the marital rape definition and to codify its punishment/penalty. The High Court held that the power of making laws is in the hand of the legislature not in the judiciary. Hence, this function should be performed by the legislature.
The RTI Foundation has also filed a PIL stating that the exemption under Section 375 and S 376 (B) should be challenged on the ground that it excludes marital rape as a criminal offence. Further, it stated that the act, Marital Rape is unconstitutional as it violates the right of a woman who is married by violating the fundamental rights of the Indian Constitution.
HOW MARITAL RAPE IS UNCONSTITUTIONAL?
Marital Rape is opposed to the right of equity and it is opposed to the law of justice and rule of law. Let us discuss the unconstitutionality of Marital Rape in detail.
Article 14 of the Indian Constitution is a fundamental right that is provided to every citizen of India which states and ensure that all the citizen of India has quality before law within the territory of India. Hence, it is clear that marital rape violates women's rights to equality. Section 375 only protects married women under the age of 15 years. Is a woman of above 15 years is not a human being.
At the time when IPC was drafted, it was the era where women were not identified as an independent legal entity, she was just considered as a property of her husband. Article 15 of the Indian Constitution states that there will be no discrimination based on caste, gender, religion place of birth, caste, and sex. But marital rape discriminates between the genders. Moreover, Article 21 of the Indian Constitution states that each citizen has the right to live with dignity except according to the procedure established by law. So, a married woman also has dignity and has the right to live, so why the chains of society have tied her? Why her right to privacy is violating.
INTERNATIONAL PERSPECTIVE ON MARITAL RAPE
Many nations of the world have criminalized marital rape and some haven’t criminalized it, most countries that are developed have seen the need of making marital rape a crime. The Union Nation Convention on the Elimination of all Forms of Discrimination against Women is a convention that gives a view in such kind of heinous crime and discrimination against women by marital rape. Which violated the principle of equality of rights and violation of human dignity and respect of women.
The commission on human rights in the 51 st session has recommended that marital rape must be criminalized by the resolution named “The Elimination of Violence against Women”. The USA, a powerful country have two kinds of laws. The state laws have criminalized marital rape whereas the National law of USA doesn’t criminalize marital rape.
To conclude that by not providing a law for marital rape and not giving it a criminal status to it, the government is subjugating the woman to loss of self-dignity, immense pain, and her faith in the law. Section 375 should add a proper clause for marital rape irrespective of the age of a woman or should make separate provision or act for criminalizing marital rape along with the appropriate punishment as it violates the fundamental rights and any things that contradict the basic structure of law should be criminalized as per laws.
The delay in the decision by the legislature and judiciary is doing disrespect of married women who are facing these kinds of heinous crimes. Therefore, there is a need for an hour to raise voice against the cultural stereotypes of male chauvinistic society and to criminalize marital rape in India. As many nations have criminalized marital rape and change the social value to protect women and given them security and empower their dignity, India should also do it so.