The line of reasoning on marital rape exceptions and protection of the institution of marriage is problematic
The line of reasoning on marital rape exceptions and protection of the institution of marriage is problematic
Recently a division bench of the Delhi High Court divided verdict But what exception Section 375 of the Indian Penal Code, i.e. marital rape exception, is unconstitutional. This exception states that sexual acts committed by a man to his adult wife are not rape.
Both the decisions discuss several important issues in arriving at their conflicting judgments. Due to space constraints, I will focus on analyzing both the views on the constitutionality of the exception in the context of Article 14 (right to equality before the law and equal protection of the laws) of the Constitution of India. This right does not completely prevent the differential treatment between two classes of persons. It merely attempts to ensure, simply speaking, that equal classes are treated equally.
editorial | The Importance of Consent: On Marital Rape
A test under Article 14 is that of a reasonable classification, which has two aspects. First, where two classes of persons (such as adults and children) are treated differently, it must be established that they are in fact different from each other. This is a state of perceptible difference. Second, there must be a logical connection or logical connection between a law that treats the two classes separately (eg, preventing children from performing hazardous labor) and the purpose or purpose of the law (protection of children).
sensible difference
In this case, the clear distinction of the marital rape exception is the consent between married and unmarried women. According to Justice Rajiv Shakdher, the marital rape exception fails in the second condition. The purpose of the law, they conclude, is to punish certain sexual acts when they are done without consent. What defines the crime of rape in this sense is its harmful nature and lack of consent. For this purpose, he finds marriage irrelevant. To him, a woman who has suffered non-consensual sex acts has been raped, regardless of her relationship with the offender. Since there is no rational relationship between the distinction (married and unmarried women) and the purpose of the law (punishing non-consensual sexual acts), the marital rape exception does not meet the criterion of proper classification and should be considered unconstitutional. .
Further, the learned Judge rightly observed that in applying this classification test, the courts should not lose sight of the essence of Article 14, which is equal protection of laws. Therefore, through motions of trial, courts should not validate inequality or discrimination.
According to Justice C. Hari Shankar, although the main provision is actually intended to punish acts of rape, the purpose of the marital rape exception is to keep the ‘stain’ of the allegation of rape out of the marital sphere, and thus to protect the marriage. Institution of. In the light of this objective, they conclude, discriminatory treatment of married and unmarried women is not unconstitutional. However, no reason has been given as to why the institution of marriage would be threatened if marital rape is recognised. The experiences of countries where the crime has been recognized provide no evidence of a weakening or destruction of marriage, or, more importantly, of wives prosecuting their husbands for rape and weakening the marriage or There is a reason to destroy. How, then, is the nexus rational?
circular line of reasoning
In addition, according to this opinion, not all non-consensual sex can be considered rape because the marital rape exception takes sexual acts within a marriage out of the scope of the crime and the label of ‘rape’. Marriage, within which there is a ‘lawful’ expectation of sex, materially alters the nature of the act in this view, although the opinion does not explain why this is a ‘lawful expectation’ and not consent that is the nature of sex. determines. Marriage. Certainly, as the Honorable Judge himself confirms, there can be no legitimate expectation of forced sex. Although he agrees that women’s sexual autonomy deserves respect, and that any legitimate expectation of sex within marriage ends where their rights to sexual autonomy and bodily integrity begin, he does not think that it is This does not mean that non-consensual or forced sex within a marriage should be rape. ,
This is a circular and inconsistent line of reasoning. The very existence of the exception upholds the reasonableness and constitutionality of the exception. Consider, if homicide was legally defined as intentional homicide, and an exception stated that no intentional homicide would be homicide on a Monday. Wouldn’t it be circular while examining the reasonableness of this exception to say that it is perfectly valid on the ground that the exception itself excludes a class of intentional killings from the purview of the offense of murder and, therefore, these are not intentional murders? Can go To be equated with other willful murders? Similarly, autonomy (i.e. self-government) is axiomatically antithetical to force. If I can be compelled or otherwise compelled to do what is against my will or without my consent by someone else, my right to self-government is forfeited. Marriage has nothing to do with it.
denial of autonomy
On such logic, the honorable judge makes a seriously problematic claim: rape by a stranger is worse than rape by a husband. This claim flatters the diversity of experiences of rape victims without any evidence to support it. Non-consensual or forced sex within a marriage may be culturally normalized and legally valid, but there is no conclusion that marriage makes the experience of ‘nonconsensual/coercive sexual acts’ less wrong or harmful. In fact, forced sexual activity by someone who is meant to love you and who has constant access to your body because of the closeness of marriage can be worse. Physical abuse can be aggravated by a breach of trust, fear of continued violation of bodily integrity, and the perversion of being in a close relationship with someone who intentionally denies your sexual autonomy.
The result of this divided decision is a legal impasse. We can now only hope that the matter will be settled by the Supreme Court of India, or preferably by the Parliament itself.
Shraddha Chaudhary is a PhD student at Law Faculty, University of Cambridge and Lecturer, Jindal Global Law University, OP Jindal Global University, Sonepat.