Abolition of the exception of marital rape would demonstrate intolerance to rape by the state
The recent judgments of two high courts on marital rape made headlines. Although none of the courts took note of the constitutionality of marital rape, their reference once again sparked a debate on whether Exception 2 to Section 375 of the Indian Penal Code is constitutional or not. As per Exception 2, sexual intercourse by a man with his wife (provided she is above 18 years of age) does not amount to the offense of rape.
view of the courts
The Kerala High Court held that the act of sexual perversion of a husband against his wife is (mental) cruelty and hence a good ground for claiming divorce (since marital rape is not a punishable offence). The Court held that in modern social jurisprudence, the husband and wife are treated as equal partners and the husband cannot claim any superior right over his wife with respect to her body or with respect to her personal status.
The Chhattisgarh High Court, while acquitting the accused husband, held that the allegation of rape under Section 376 of IPC was wrong and illegal as it was covered under Exception 2 to Section 375 and the wife was not less than 18 years of age. As the law on marital rape stands today, both the High Courts were correct in their approach, but the Kerala High Court was praised more for being progressive in its approach.
The 2013 Justice Verma Committee report states that the notion that a wife is nothing more than a subordinate property of her husband has been abandoned in Britain. The European Human Rights Commission has recognized that “a rapist’s relationship with his victim”. Marital rape is a criminal offense in other countries, including South Africa, Australia and Canada. After due deliberation, the committee recommended that there be exceptions to marital rape. should be removed, but the government did not accept this suggestion.
Earlier, in 1983, the Andhra Pradesh High Court, in T. Sarita Vs. T. Venkat Subbaiah, The Hindu Marriage Act of 1955 held the restoration of marital rights unconstitutional as its decree could be misused by the husband to have sex with his wife. However, the Supreme Court overruled this, declaring that the institution of marriage was much more than a mere sexual congress.
equal sharing
A section of the society feels that once marital rape is criminalised, it can lead to false charges being filed against husbands. It also thinks that it will be very difficult for the police to prove such cases beyond doubt. The first fear is unfounded in the absence of any empirical data. In addition, there are legal provisions to deal with false cases. If found to be ineffective, the legal remedies can be modified suitably. Similarly, the difficulty of the evidence may not be a criterion for not reporting deviant behavior as a crime. Like most other sexual offenses, the prosecution can establish the case with the relevant facts and circumstances. Furthermore, eliminating Exception 2 would demonstrate complete intolerance by the state to rape.
Supreme Court decriminalizing adultery Joseph Shine vs Union of India (2018) stated that a law that perpetuates stereotypes in relationships and institutionalizes discrimination is a clear violation of fundamental rights guaranteed by the Constitution.
It is undeniable that in modern times marriage is considered a partnership of equals. It is a union of two persons, each of whom has a distinct integrity and dignity. Violation of a woman’s physical integrity is a clear violation of her autonomy. Any provision of law which is not fair, just and impartial, and is against the spirit of Article 21 of the Constitution, is discriminatory and arbitrary and should therefore be declared unconstitutional. Now it is only a matter of time that the exemption of liability from marital rape is declared unconstitutional and the dignity of the individual is fully recognized.
RK Vij is a senior IPS officer in Chhattisgarh. views are his
.