PM IAS MAY 11 EDITORIAL

HC to give verdict on marital rape today

GS 1,2; Salient Features of Indian Society, Role of Women, Issues Related to Women, Judiciary.

Context:

The Delhi High Court is expected to rule on the highly debated matter. In India, there is no statute or regulation that defines marital rape.

Petitioners have challenged an exemption to Section 375 of the IPC, which defines rape, as unconstitutional.

Rape is an illegal physical relation without a person’s consent, due to deceptive demonstration of perpetuator. Rape by an outsider is a criminal crime in India under sections 375 and 376 of the Indian Penal Code. It expressly excludes marital rape from the scope of conviction. Marital rape is intercourse between a spouse and their better half without her consent or under duress.

Report on Data:

• According to the UN Women 2011 Report, 52 of the 179 nations for which data was available had modified their legislation to clearly criminalise marital rape. However, India is one of the few nations where marital rape is not acknowledged.
• According to the NFHS-4, 4% of women were forced into sexual intercourse by their husbands when they did not want to, 2.1 percent were forced to undertake sexual actions they did not want to, and 3% were threatened to conduct sexual acts they did not want to.
• The NCRB documented 28,046 rape cases in 2020, a 12.4 percent decrease from the previous year’s total of 32,032. According to the 2018 NCRB survey, more than 90% of rapes are committed by somebody known to the victim.
• The most recent NCRB data show an increase in the rate of rape and crime against women convictions. In 2019, the conviction rate for rape cases was 27 percent (conviction in 5,800 cases out of 20,919). In 2020, this percentage will have risen to a stunning 37%. (Conviction in 4,473 cases out of 11,977). Overall, the conviction rate for offences against women climbed from 19.3% in 2019 to 23% in 2020.

What is the Contention?

According to Section 375 of the Indian Penal Code 1860, sexual activities committed by a male on a woman against her will or permission constitute rape. There are two exceptions to this rule-

• According to the first exemption, “a medical operation or intervention shall not constitute rape.”
• According to the second exemption, “sexual intercourse or sexual activities by a man with his own wife” when the wife is over the age of 18 is not rape. This paragraph is being constitutionally scrutinised.

While marital rape is not a crime in India, a woman may file a complaint under other articles of the Indian Penal Code, such as cruelty, and may even seek divorce.

The Legal Status of Marital Rape in India:

• Rape is defined in Section 375 of the Indian Penal Code (IPC) as any type of sexual assault involving non-consensual contact with a woman.
• The non-criminalization of marital rape in India stems from Section 375 Exception 2. However, Section 375 Exception 2 exempts unwilling physical intercourse between a husband and a wife above the age of fifteen from the definition of “rape” and thereby protects such actions from prosecution.
• In India, the notion of marital rape is the pinnacle of what we call “implied consent.” Marriage between a man and a woman in this context indicates that both have consented to sexual intercourse, which cannot be otherwise.
• Marital rape is a violation of both legal and constitutional rights.
• Doctrine of Coverture: The non-criminalization of marital rape dates back to the British era. The ideology of blending the woman’s identity with that of her husband greatly impacted and stemmed from marital rape. A married woman was not regarded an autonomous legal person when the IPC was created in the 1860s

• Article 14 violation: Marital rape breaches Article 14 of the Indian constitution’s guarantee of equality.
• Against the spirit of IPC Section 375: Section 375 of the IPC’s goal is to protect women and punish those who indulge in the barbaric act of rape. Exempting spouses from punishment, on the other hand, is diametrically opposed to that goal, because the penalties of rape are the same whether a woman is married or single.
• Article 21 violation: According to the Supreme Court’s imaginative interpretation, the rights protected in Article 21 include, among other things, the rights to health, privacy, dignity, safe living circumstances, and a safe environment.
• For married women, the sole option against non-consensual sex is civil laws under the Protection of Women from Domestic Violence Act or Section 498-A of the IPC on cruelty towards a wife by the husband or his kin.
• The Protection of Women from Domestic Violence Act of 2005, which deems marital rape to be a sort of local violence, was approved in 2005.
• The Right to Live with Dignity: The concept of the right to life under Article 21 of the Constitution was stressed in the case of Francis Corallie Muin v. Union Territory of Delhi. According to this case, Article 21 includes the right to live with human dignity and all that goes with it, specifically the minimum necessities of life, such as adequate nutrition, clothing, and shelter over one’s head, as well as facilities for reading, writing, and expressing oneself in various forms, freely moving about, and mixing and mingling with fellow human beings.
• Sexual Privacy is a legal right: The Indian Constitution makes no mention of the right to privacy. Nonetheless, in a succession of decisions such as Kharak Singh v. State of Uttar Pradesh, Govind v. State of Madhya Pradesh, Neera Mathur v. LIC, and others, the Supreme Court has recognised that a right to privacy is fundamentally guaranteed under the scope of Article 21.
• Right to Physical Self-Determination: Despite the fact that the right to considerable self-assurance is not directly mentioned in the Constitution, such a right exists in the larger framework of the right to life and personal liberty.

What have the courts stated in previous cases?
 

• The Supreme Court ruled in State of Karnataka v. Krishnappa that sexual assault, in addition to being a demeaning act, is an unconstitutional invasion of a female’s right to privacy and sanctity. In the same decision, it was determined that non-consensual sexual intercourse constitutes bodily and sexual violence.
• The Supreme Court associated the freedom to make sexual activity choices with the rights to personal liberty, privacy, dignity, and physical integrity under Article 21 of the Constitution in the case of Suchita Srivastava v. Chandigarh Administration.
• The Supreme Court acknowledged the right to privacy as a basic right of all people in Justice K.S. Puttuswamy (Retd.) v. Union of India.
• The Gujarat High Court sent notice to the Centre and the state of Gujarat in December 2021 in a suit contesting the constitutionality of the marital rape exemption.
• The Kerala High Court ruled in August 2021 that even if marital rape is not classified as rape under the criminal code, it may be grounds for divorce.
• In 2017, the Supreme Court ruled that the marital rape exemption, as it pertains to married females aged 15 to 18, is unconstitutional.
• In recent years, the Supreme Court has recognised the value of married women’s privacy and physical autonomy in sexual relationships. For example, in the 2017 right to privacy ruling, the court confirmed that declining to participate in sexual conduct is a component of the right to personal liberty under Article 21 of the Constitution.
• Furthermore, despite decriminalising adultery in 2018, the Supreme Court ruled that even married interactions are subject to constitutional examination.
• In State of Maharashtra vs. Madhukar Narayan Mandikar, the Supreme Court pointed to one aspect of bodily security.
• In Sree Kumar vs. Pearly Karun, the Kerala High Court observed that the offence under Section 376A, IPC will not be drawn in if the spouse is not living independently from her husband under a declaration of partition or under any custom or use, regardless of the possibility that she is liable to intimacy by her better half without her consent and without her knowledge.
• In 2013, the JS Verma committee, established in the Nirbhaya gang-rape case, and the UN Committee on the Elimination of Discrimination Against Women (CEDAW) proposed that the Indian government prosecute marital rape.

The Government’s Position:

• Establishing Effect on Marriage Institution: Until recently, the government has repeatedly stated that criminalising marital rape will endanger the institution of marriage and infringe on the right to private.
• Misuse of Legal Provisions: There is an increasing misapplication of IPC Section 498A (harassment of a married woman by her husband and in-laws) and the Protection of Women from Domestic Violence Act, 2005.
• Making marital rape a crime might become a convenient weapon for harassing husbands.

Arguments Against Making Marital Rape a Crime:

• Destabilize marriage as an institution: It may cause complete chaos in families and destabilise the institution of marriage, destroying the family platform that maintains family values and contributes to the country’s survival.
• Marriage is regarded as a sacrament in Indian culture.
• Misuse of the law: It may become an easy instrument for harassing husbands by abusing the law, comparable to the rising misuse of IPC section 498A (harassment of a married woman by her husband and in-laws).
• Raising awareness is more important: Simply criminalising marital rape may not be enough to put an end to it since “moral and social awareness” is essential in preventing such an occurrence.
• State Culture Variety: India has unique challenges owing to variables such as literacy, lack of financial empowerment for the majority of females, the attitude of the culture, huge diversity, poverty, and so on, and these should be carefully studied before criminalising marital rape.
• Additionally, criminal law is on the Concurrent List and is applied by the states, and the cultures of different states vary greatly.
• The Indian Law Commission and the Parliamentary Standing Committee on Home Affairs did not propose criminalising marital rape after extensively investigating the issue.
• No violation of Article 21: Because a wife is not obliged to reside with a sexually abusive husband under personal law, non-criminalization of marital rape is “not a breach” of Article 21 of the Constitution.
• Implementation problems: Making marital rape a crime will result in major implementation issues, such as
• If all sexual actions by a man with his wife qualify as marital rape, then the decision as to whether it is or is not a marital rape will lie only with the woman, who cannot always be trusted.

Conclusion:

Violence against women is defined as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or private life” by the United Nations Declaration on the Elimination of Violence Against Women.

In 2013, the UN Committee on the Elimination of Discrimination Against Women (CEDAW) proposed that marital rape be criminalised in India.

In India, marital rape is not totally criminalised. It is unquestionably a legitimate sort of misbehaviour against women that requires the attention of the authorities.

Women who have been raped by their spouses are more vulnerable to other attacks and typically experience long-term physical and emotional concerns. In this case, marital rape is even more horrifying for a woman since she must live with her perpetrator on a regular basis. Because the consequences of marriage rape are so severe, there is clearly a pressing need to criminalise the offence of marital rape.

Positive legal change for women is generally taking place in India, but more steps are required to achieve both legal and social reform, which would result in criminalising marital rape and changing the attitude toward women in marriage.

The Protection of Women from Domestic Violence Act contains several loopholes since it does not expressly prohibit marital rape. On the plus side, the passage of a specific law against domestic violence has paved the path for a law criminalising marital rape.

This clearly reflects a shift in the state’s philosophy, which formerly relied on non-interference in the family circle.