Marital Rape - Social and legal aspects
There is an impression in our social circle and community, due to our patriarchal heritage and colonial legacies, that a woman is tied to her husband as a form of property owned by him. But our constitution treats women as a separate legal entity, who are not bound to her spouse for justice and are entitled to every right as other segments of society receive. So, the question rolling in minds of many is why there is inequality just based on their marital status, just because the offender is her spouse, would they be denied justice?
The immunity provided to the spouses in section 375 is in contradicton with several fundamental rights provided to every citizen which incorporates right to equality, life with dignity, personhood, privacy, sexual, and personal autonomy. A two-judge Bench of Justices Rajiv Shakder and C Hari Shankar is hearing a clutch of four petitions challenging the constitutionality of the exception to Section 375 of the Indian Penal Code that deals with rape. Apart from the petitioners, who include the All India Democratic Women’s Association, the court is also hearing amicus curiae Raajshekhar Rao and Rebecca John, senior advocates.
Infringement of Article 14 -
A woman’s basic fundamental rights are getting violated due to the abuse from her spouse. Exception of Marital rape violates the right to equality before law . “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India” enshrined in Article 14 of the Indian constitution. The Exception creates two classes of women based on their marital status and immunizes actions perpetrated by husband's against their wives. In process, the Exception immunizes husband's and makes possible the victimization of their wives for no reason other than their marital status while protecting unmarried women from those same acts.
Infringement of Article 21 -
In accordance with the exegesis of Article 21 by Supreme Court, it's scope include the rights to health, privacy, dignity, safe living conditions, and safe environment, among others.
As we analyze the exception of marital rape, we clearly see that it violates women's right to privacy.
Right to privacy is not mentioned in the Indian Constitution. However, in cases like Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right of all citizens and is intrinsically ensured under the extent of Article 21. In this context right to privacy can be interpreted as “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".
The Apex Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. Every woman is entitled to her sexual privacy and it is not open to for any person to violate her privacy.
Sexual relationship is a standout amongst the most individual decision that a lady holds for herself. Decisions identified with sex is a type of self expression and self-assurance. The exception also violates the right to self assurance and bodily autonomy of a woman. The marital exclusion principle successfully denies a wedded lady her entitlement to substantial self-assurance and meddles in her most individual decision making.
Shattering the Spirit of Section 375 of IPC -
The sole motive of Section 375 of IPC is to punish offenders who engage in the inhumane activity of rape and provide justice to women who go through such tormenting conditions. Having said that, providing immunity to spouses from punishment is entirely contradictory to that objective, as the aftermath of rape doesn't change just because the offender is her hysband.
Contrary to some societal assumptions, married women in effect find it more difficult to escape abusive conditions at home because they are legally and financially tied to their husbands.
So, the question before the judiciary and central government is, to what extent and to what rationality, the law can authenticate the breach of the very fundamental rights.
The other side -
As the hearings proceed in Delhi High Court heaps of arguments, questions and complexities in removing the exception of Marital rape crop up before the judiciary. One of the question before the court is "implied consent" and "expectation of conjugal sexual relationship" in a marriage. The bench noted one important thing that there is a difference between "right to have sex" and the "reasonable expectation of sex," as there is an assumption that in marriage a woman gives consent held by her husband in perpetuity which she cannot retract.
Since the husband has a reasonable expectation of sex in a marriage, the provision implies that a woman cannot deny it. Is the "implied consent" in a marriage cannot be considered "irrevocable consent” ?
One of the most exphasised concern for Men’s Welfare Trust and other such organisations that, since there are several instances of misuse of the currently available domestic violence and dower harassment laws, bringing the marital relationship within the definition of "rape" has the potential for serious misuse. Groups claim that a new offense of marital rape will become a tool in the hands of women to file fake cases against men to extort money or blackmail them. Even though it is a reasonable concern. However, one can observe that ,“every law can be misused but it cannot be a ground not to bring a law” quoting the bench.
The issue that have most legal rationale is pragmatic legal proceedings of such cases, how would a man prove he did not rape his wife if she complains of an incident that occurred five years ago? The burden of proof is a hugely complex issue that has prevented marital rape to be criminalised. Now, if marital rape itself is criminalised, the question remains who would the burden of proof be on and what would that burden be, there would hardly be any evidence, to prove that the woman has or has not been raped and therefore, the burden of proof would be a difficult concept to apply in these cases. It is more difficult to prove the offence in a relationship where regular sexual intercourse occurs, unless there is proof of serious injury. Another question arrives before judiciary is could someone be charged with "attempted rape" under Section 511 of the IPC if the victim is their wife? In a relationship where there is a sexual relationship, how would evidence of an "attempt" be considered?
These are some concerns of organisations and sections of society that the judiciary have to take in consideration before removing the immunity.
Government's Stand -
HC reminds the center on a frequent basis to take a firm stance on the issue. For now the Centre has stated that additional time is needed for deliberation in order to ensure a "constructive approach," since it is currently considering modifying certain provisions of the criminal code act and the home ministry has requested suggestions for revisions to the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act from the Chief Justice of India, MPs, and Chief Ministers.
However, the Centre claimed in a 2017 case in which the Delhi High Court was considering three petitions that criminalizing marital rape would destabilize the institution of marriage and make it "an easy instrument for harassing the husbands." Central government quoted the two reports first one was of 172nd Law Commission In its report on "Review of Rape Laws" in March 2000, the Law Commission of India stated that it would not suggest the elimination of the exemption clause in Section 375 "since that may amount to inappropriate interference with the marital relationship." and that of A Parliamentary Standing Committee on Home Affairs chaired by Venkaiah Naidu too said, “the entire family system will be under great stress” should marital rape be criminalised.
Whilst the government appears to be ignoring the Justice Verma committee, which was established to suggest criminal law revisions in the aftermath of the gangrape of a paramedical student in December 2012,According to the Verma panel, "the exemption for marital rape should be deleted," and the law should "specify that a marital or other relationship between the offender and victim is not a legitimate defense against the crimes of rape or sexual violation." while quoting “exemption for marital rape stems from a long outdated notion of marriage which regarded wives as no more than the property of their husbands”……. “whereas marriage is in modern times regarded as a partnership of equals. Where The Delhi government informed the High Court that marital rape is already a cruelty violation under the IPC's 498A domestic violence provisions. However, opponents argue that sexual assault is a more terrible crime that should be dealt with separately and with greater penalties.
The Delhi administration also claimed that courts did not have the ability to establish new crimes, which was disputed by the argument that criminalising marital rape would not create a new crime but would just remove the particular immunity granted to a husband.
The social aspect -
Social ramification of any law should also weigh equally as the legal and constitutional aspects. Similarly we should definitely look at what effect criminalizing marital affairs have on Indian society. The criminalization of marital affairs is being constantly supported by the argument that it has been implemented in about 150 countries .
One can definitely compare the legal rights and moral values of two countries but the fact that in these 150 countries none of them are from south asia (except Nepal and Bhutan) speaks that it is not just a question of legal rights but also the influence it will have on society. The MWT has also argued in the court that '' to say that this(marital rape) has no social impact or it is not a social issue would be to truncate the entirety of the particular position''.
Further MWT emphasized that to protect the 'institution of marriages'(as many foreign jurisdiction acknowledge) the crime should be termed as 'spousal sexual violence' rather than bluntly calling it a 'rape'. And this would not be the violation of fundamental rights as this distinction is based on 'intelligible differentia.' Another difficulty is that, even if the exemption is struck down, it might trivialize marital rape over time. Constant violations of these rules are also committed by police officers, which resulted in the court reprimanding police officers after several complaints were filed against them. Then, for fear of being reprimanded, many times the police would not even file the complaint, even if it is legitimate.
Before the court or the legislature makes any judgement, all factors should be considered in order to create a law that does not just exist on paper but also has a practical function on the ground.
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