The meaning of assault systematized in Section 375 of the Indian Penal Code (“IPC”) incorporates all types of rape including non consensual intercourse with a woman[1]. However, Exception 2 to Section 375 excludes reluctant sex between a spouse and a wife more than fifteen years old from Section 375’s meaning of “assault” and in this manner inoculates such acts from indictment. According to current law, a spouse is attempted to convey never-ending agree to engage in sexual relations with her significant other subsequent to going into conjugal relations. While reluctant sexual contact between a spouse and a wife is perceived as a criminal offense in pretty much every nation of the world, India is one of the thirty-six nations that despite everything have not condemned conjugal rape[2].
The Supreme Court of India and different High Courts are as of now overflowed with writ petitions testing the lawfulness of this special case, and in an ongoing milestone judgment, the Supreme Court condemned reluctant sexual contact with a wife somewhere in the range of fifteen and eighteen years of age[3]. This judgment has thus prompted an expansion in different writs testing the defendability of Exception 2 all in all. Considering progressing prosecution, this Article basically examinations the lawfulness of Exception 2.
Violation of Article 12 of the Indian Constitution
Article 14 of the Indian Constitution guarantees that “[t]he State will not deny to any individual balance under the steady gaze of the law or the equivalent insurance of the laws inside the domain of India[4].” Although the Constitution ensures balance to all, Indian criminal law victimizes female casualties who have been assaulted by their own spouses.
At the time the IPC was drafted during the 1860s, a wedded lady was not viewed as a free lawful element. Or maybe, she was viewed as the asset of her husband[5]. subsequently, she didn’t have a significant number of the rights presently ensured to her as an autonomous legitimate substance, including the option to record a grumbling against another under her own identity[6]. Exception 2, which basically excludes activities executed by spouses against their wives from being viewed as demonstrations of “assault,” is generally affected by and gotten from this previously existing teaching of consolidating the lady’s personality with that of her better half.
The underlying foundations of this convention can be followed to British provincial guidelines in the Victorian era[7]. India was a British settlement during the nineteenth century. Every single Indian law ordered right now was profoundly impacted by English laws and Victorian standards. The conjugal exemption to the IPC’s meaning of assault was drafted based on Victorian man centric standards that didn’t perceive people as equivalents, didn’t permit wedded ladies to possess property, and combined the characters of a couple under the “Convention of Coverture.”
Be that as it may, circumstances are different. Indian law presently manages married couples discrete and autonomous legitimate characters, and much statute in the advanced period is unequivocally worried about the security of ladies. This worry is apparent in the plenty of resolutions expected to shield the ladies from savagery and badgering that have been passed since the turn of the century, including “The Protection of Women from Domestic Violence Act” and the “Lewd behavior of Women at Workplace (Prevention, Prohibition and Redressal) Act[8].”
Special case 2 disregards the privilege to fairness revered in Article 14 to the extent that it victimizes wedded ladies by denying them equivalent insurance from assault and lewd behavior. The Exception makes two classes of ladies depending on their conjugal status and inoculates activities executed by men against their spouses. In doing as such, the Exception makes conceivable the exploitation of wedded ladies for reasons unknown other than their conjugal status while shielding unmarried ladies from those equivalent demonstrations.
Exemption 2’s differentiation among wedded and unmarried ladies additionally abuses Article 14 to the extent that the characterization made has no sound connection to the basic motivation behind the resolution. In Budhan Choudhary v. Territory of Bihar[9[and State of West Bengal v. Anwar Ali Sarkar[10], the Supreme Court held that any arrangement under Article 14 of the Indian Constitution is dependent upon a sensibility test that can be passed just if the grouping has some normal nexus to the target that the demonstration looks to accomplish. In any case, Exception 2 disappoints the reason for Section 375: to secure ladies and rebuff the individuals who take part in the unfeeling action of assault. Excluding spouses from discipline is totally conflicting to that objective. Set forth plainly, the outcomes of assault are similar whether a lady is hitched or unmarried. Besides, wedded ladies may really think that it’s progressively hard to get away from harsh conditions at home since they are lawful and monetarily attached to their spouses. In all actuality, Exception 2 urges spouses to compellingly go into sex with their wives, as they realize that their demonstrations are not debilitated or punished by law. Since no discerning nexus can be deciphered between the order made by the Exception and the hidden goal of the Act, it doesn’t fulfil the trial of sensibility, and along these lines disregards Article 14 of the Indian Constitution.
Violation of Article 21 of Indian Constitution
Exception 2 is also a violation of Article 21 of the Indian Constitution[11]. Article 21 states that “no person shall be denied his life and personal liberty except according to the procedure established by law.” The Supreme Court has interpreted this clause in various judgments to extend beyond the purely literal guarantee to life and liberty. Instead, it has held that the rights enshrined in Article 21 include the rights to health, privacy, dignity, safe living conditions, and safe environment, among others.
In recent years, courts have begun to acknowledge a right to abstain from sexual intercourse and to be free of unwanted sexual activity enshrined in these broader rights to life and personal liberty. In The State of Karnataka v. Krishnappa, the Supreme Court held that “[s]exual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and the sanctity of a female[12].” In the same judgment, it held that non-consensual sexual intercourse amounts of physical and sexual violence. Later, in the Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution[13].
Most recently, the Supreme Court has explicitly recognized in Article 21 a right to make choices regarding intimate relations[14]. In 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 held that the right to privacy includes “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.” Forced sexual cohabitation is a violation of that fundamental right[15]. The above rulings do not distinguish between the rights of married women and unmarried women and there is no contrary ruling stating that the individual’s right to privacy is lost by marital association. Thus, the Supreme Court has recognized the right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental right conferred by Article 21 of the Constitution.
Additionally, Exception 2 violates Article 21’s right to live a healthy and dignified life. As mentioned above, it is well settled that the “right to life” envisaged in Article 21 is not merely a right to exist. For example, there can be no dispute that every citizen of India has the right to receive healthcare or that the state is required to provide for the health of its constituents[16]. In this vein, the courts have repeatedly held that the “right to life” encompasses a right to live with human dignity[17]. Yet the very existence of Exception 2, which fails to deter husbands from engaging in acts of forced sexual contact with their wives, adversely affects the physical and mental health of women and undermines their ability to live with dignity.
The above conclusions clearly reflect that Exception 2 to Section 375 of the IPC is an infringement of Articles 14 and 21 of the Constitution. It is time that Indian jurisprudence understands the inhumane nature of this provision of law and strikes it down.
References:
1. Indian Penal Code Section 375, No. 45 of 1860, India Code
2. Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016.
3. Independent Thought v. Union of India, (2013) 382 SCC (2017) (India)
4. India Const. art. 14.
5. To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6) Harv. L. Rev. 1255, 1256 (1986)
6. ibid
7. Jill Elain Hasday, Consent and Contest: A Legal History of Marital Rape, 88 Calif. L. Rev. 1373 (2000)
8. Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India); Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, No. 14, Acts of Parliament, 2013 (India)
9. Budhan v. State of Bihar, AIR (1955) SC 191 (India)
10.State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75 (India)
11.India Const. art. 21
12.The State of Karnataka v. Krishnappa, (2000) 4 SCC 75 (India)
13.Suchita Srivastava v. Chandigarh Administration, (2008) 14 SCR 989 (India)
14.Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161 (India)
15.as “Right to abstain” from sexual intercourse is a long recognized principle of Indian Constitutional jurisprudence . Govind v. State of M.P, AIR (1975) SC 1378 (India); Kharak Singh v. State of U.P, (1963) AIR SC 1295 (India)
16.Regional Director ESI Corpn. v. Francis de Costa, 1993 Supp (4) SCC 100; 5 D.D. Basu, Commentary on the Constitution of India, 4711 (LexisNexis 2015)
17.C.E.S.C. Ltd. v. Subhash Chandra, (1992) 1 SCC 441 (India)
About the author –
This article is authored by Prabhjot Singh, third year B.B.A. LL.B. (H) student at Galgotias University, Greater Noida.
