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Source: This post is based on the article “Marital Rape: An indignity to women” published in The Hindu on 31st August 2021.
Relevance: Understand the issue of Marital Rape.
Synopsis: The marital rape exception is antithetical to women’s dignity, equality and autonomy.
Recently, the High Court of Chhattisgarh decided a criminal revision petition. The charges were framed against the husband based on the allegations of his wife. The High Court upheld charges under Sections 498A (cruelty towards wife by husband or relatives) and Section 377(unnatural sex) but discharged the husband under Section 376 (rape).
Why the person has been discharged from Section 376?
This was done as an Exception 2 to Section 375 (the definition of rape). As this section provides that sexual intercourse by a man with his own wife (provided that wife is over the age of 18) would not amount to the offence of rape. This is based on the premise that all sex within marriage is consensual.
Earlier in the Independent Thought vs Union of India (2017) case, the government defended these provisions by stating that making marital rape a crime would destroy the institution of marriage.
However, there are many inconsistencies in this provision of the law:
- First, the husband may be tried for sexual offences like sexual harassment, molestation etc as they make no exception for the marriage.
- Second, a husband can be tried for unnatural sexual intercourse under section 377 instead of under section 376.
- In Navtej Singh Johar vs Union of India, 2018, the SC ruled that Section 377 is applicable only when the intercourse is done without the consent of the other partner.
- Third, it is argued that marriage is a sexual relationship. So, determining the validity of allegations of marital rape is difficult. However, one should keep in mind that marriage does not grant permanent and perpetual consent.
- Fourth, this section goes against the constitutional goal of individual autonomy, individual dignity and gender equality. The provisions seek to make the husband her master and thus, it promotes patriarchal beliefs. It goes against the norms of Article 21 and Article 14 of the Indian constitution.
- This notion of patriarchy which believes that women are husband’s property was challenged by Joseph Shine vs Union of India (2018). In this case, the Supreme Court held that criminal prosecution under adultery was unconstitutional. Adultery as a criminal offence should either apply equally to both genders or not apply to any gender at all.
What steps should we take going forward?
The presence of Exception 2 under 375 is antithetical to the liberal and progressive values of our constitution. We should take cues from Independent Thought vs Union of India (2017) where SC had read down the exception and laid emphasis on the significance of consent in any sexual relationship. Thus, this protection should also be afforded to women against their husbands.
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