Freedom cannot be achieved unless women have been emancipated from all kinds of oppression.- Nelson Mandela

India is a country, where 80% of its population worships Goddesses. The country is personified as Bharat Mata and little girls are known to be the reincarnation of Goddesses. But this could not provide the women in our country with the independence, dignity and freedom that they deserve.

Rape, the term itself is enough to give terrifying chills to a person who knows its implications. According to Section 375 of the Indian Penal Code, rape is defined as sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud, or while she is intoxicated or duped, or is of unsound mental health, and in any case if she is under 18 years of age. Justice Arjit Pasayat was quoted giving his opinion as:
"While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.

As per Section 376 of the Indian Penal Code, the person committing rape is to be punished for his/her unlawful deeds. But an exception to Section 375 of the statute changes the scenario for everyone. According to Exception 2 of Section 375 of the Indian Penal Code, Sexual intercourse or sexual actions between a man and his own wife, if the wife is not under the age of fifteen, cannot be termed as rape.

This particular section emanates non-criminalization of a grave offence such as rape, if the woman is married to the person. According to the current statute, after entering into marital intercourse, a wife is presumed to give her husband eternal agreement to have sex with her. In India, the concept of marital rape exemplifies what we call "implied consent." Marriage between a man and a woman in this context implies that both parties have agreed to engage in sexual activity, and it cannot be otherwise. Though the Protection of Women from Domestic Violence Act 2005 (PWDVA), which came into force in 2006, outlaws marital rape, it offers only a civil remedy for the offence, which should be classified as a criminal offence.

History of Marital rape:

Marital rape has not been considered a crime from the British era. The theory of blending a woman's identity with that of her husband was heavily influenced by and developed from the practices of marital rape. Indian Penal Code is one of the first codified laws in India which was drafted in the 1860s. Hence, a married lady was not recognized a legal person in her own right or a separate legal entity. This marital exception to the definition of rape in the Indian Penal Code was developed in response to Victorian patriarchal standards that denied men and women equality, barred married women from owning land and property, and blended husband and wife identities under the "Doctrine of Coverture."

The purpose of Section 375 of the Indian Penal Code is not achieved:
Section 375 of the Indian Penal Code was enacted to protect women and punish those who indulge in the barbaric act of rape. Exempting husbands from punishment, on the other hand, runs counter to that goal, because the penalties of rape are the same whether a woman is married or not. Furthermore, because they are legally and financially bound to their spouses, married women may find it more difficult to flee violent situations at home.

Violation of Article 14 of the Indian Constitution:

The exception 2 under Section 375, not only fails in providing a well deserved remedy, but also violates the fundamental rights of the victims. According to Article 14 of the Constitution of India, "The State shall not deny to any person equality before the law or equal protection of the laws within the territory of India." As a result, Article 14 safeguards a person from discrimination by the government. However, when it comes to protection from rape, the exclusion under Section 375 of the Indian Penal Code, 1860, discriminates against a wife.

As a result, it is argued that the exception given under Section 375 of the Indian Penal Code, 1860, is not a rational classification, and thus breaches the constitutional protection provided by Article 14. The Exception divides women into two groups based on their marital status and protects males from committing crimes against their spouses. As a result, the Exception allows married women to be victimized only because of their marital status, while unmarried women are protected from the same offences.

Violation of Article 21 of the Indian Constitution:

The rights enshrined in Article 21 of the Indian Constitution include, among other things, the rights to health, privacy, dignity, safe living conditions, and a safe environment, according to the Supreme Court's interpretation. The reach of Article 21 of the Indian Constitution has been greatly broadened by judicial interpretation, and the "right to live with human dignity" now falls under its purview. Marital rape plainly breaches a woman's right to dignity, and the exception provided under Section 375 of the Indian Penal Code, 1860, is thus said to be in violation of Article 21 of the Constitution.

The same is observed in certain case laws. In the case of State of Karnataka v. Krishnappa, the Supreme Court ruled that sexual violence is an unlawful invasion of a woman's right to privacy and sanctity, in addition to being a demeaning act. Non-consensual sexual intercourse is considered physical and sexual violence, according to the same ruling. In case of Suchita Srivastava v. Chandigarh Administration, under Article 21 of the Constitution, the Supreme Court associated the right to make sexual activity-related decisions with the rights to personal liberty, privacy, dignity, and bodily integrity.

In the case of Bodhisattwa Gautam v. Subhra Chakraborty, the court ruled that rape is a crime against humanity and a violation of the right to life inherent in Article 21 of the Constitution, and established standards for compensating rape victims. In the case of Justice K.S. Puttuswamy (Retd.) v. Union of India, the right to privacy was recognised by the Supreme Court as a basic right of all citizens. The right to privacy includes "decisional privacy," which is defined as "the ability to make intimate decisions about one's sexual or procreative nature, as well as decisions about intimate relations."

The Supreme Court has acknowledged the right of all women, regardless of their marital status, to abstain from sexual activity as a basic right guaranteed by Article 21 of the Constitution in all of these case laws. As a result, forced sexual intercourse is a breach of Article 21's fundamental right.

Recommendations made to criminalize marital rape:

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, according to the United Nations Declaration on the Elimination of Violence Against Women. The UN Committee on the Elimination of Discrimination Against Women (CEDAW) recommended to the Indian government in 2013 that marital rape should be criminalized. The same was proposed by the JS Verma committee, which was formed in the aftermath of widespread demonstrations over the December 16, 2012 gang rape case.

Women will be safer from abusive spouses, will be able to get the help they need to recover from marital rape, and will be able to protect themselves from domestic violence and sexual assault if this law is repealed. Furthermore, at its fifty-first session, the Commission on Human Rights suggested that marital rape should be criminalized in Resolution No. 1995/85 of 8-3-1995 headed "The elimination of violence against women."

The primary goal of the 2013 amendment was to increase women's access to the legal system by making much-needed revisions to the definition of rape. The changes to the Criminal Penal Code and the Evidence Act were made to ensure that women who come forward after being raped are not re-victimized in the legal system. The modifications aimed to eliminate needless medical examinations and inquiries asked of women during cross-examination, as well as to improve the investigation and trial of rape cases. Despite the modifications in the legislation and several recommendations, legislators and governments have done no action to address the issue of marital rape.

It is important to note that, given the lack of legislation, there is no data on the number of recorded occurrences of marital rape. It's worth noting that criminal law is included in the Concurrent List and is applied by the states. The cultures of the states are extremely diverse.

As a result, the State Government must adopt strong measures in this area. That, in this moment of legal reforms and revolutions, it is critical to take measures toward criminalizing marital rape so that we can take a genuine step forward on the road to progress. In a nation like India, such reform is a long way off since neither the country's parliamentarians nor the legal system are willing to narrow the gap between marital rape and rape, both of which are horrible crimes that can leave a victim scarred for life.

It is disheartening to note that even in the year 2021, when the world seems to have progressed, India is still dealing with the same issues. It is said that a woman should always compromise and her husband's words must be final for her, to maintain the familial institution, even if he is raping her. The viewpoints like if criminalized, marital rape would break the familial institution and would compromise with the so-called Indian values, showcases the shallow mindset of the people in our country which serves as a huge blockage for the judicial system's path for progress.

The questions that we need to ponder upon are- Can a woman experience contentment, if she compromises with her dignity, keeping her values in mind? Can we not provide those women a dignified and respectful life, who tend to do so much for our society and humanity? Is providing them a civil remedy for a criminal offence, justified? The day we get these answers, in my opinion, that is the day when we will be able to progress.

Bibliography

1. 22nd Parliament of the Republic of South Africa, 1994, available at: https://www.womensweb.in/2016/06/11-inspiring-gender-equality-quotes-will-leave-thinking/ (last visited on June 02, 2021)
2. Indian Penal Code, 1860, available at: https://legislative.gov.in/sites/default/files/A1860-45.pdf (last visited on June 02, 2021)
3. Stretton, Tim, and Krista J. Kesselring, editors. Married Women and the Law: Coverture in England and the Common Law World. McGill-Queen's University Press, 2013. Available at JSTOR: www.jstor.org/stable/j.ctt32b7jq. (Last visited on 2 June 2021.)
4. Editorial, Marital rape in India, Drishti, 22 Dec 2020. Available at: https://www.drishtiias.com/daily-updates/daily-news-editorials/marital-rape-in-india (last visited on June 02, 2021)
5. The Constitution of India, Available at: https://legislative.gov.in/constitution-of-india (last visited on June 02, 2021)
6. Mishra Aishwarya, Law on Marital rape: A much needed reform in our legal system, Singh & Associates, 13 April 2018. Available at: https://www.mondaq.com/india/crime/691482/law-on-marital-rape-a-much-needed-reform-in-our-legal-system ( last visited on June 02, 2021)

Case Laws:

1. Tulshidas Kanolkar vs The State Of Goa, (2003) 8 SCC 590
2. State of Karnataka v. Krishnappa, ILR 1994 KAR 89, 1993
3. Suchita Srivastava v. Chandigarh Administration, AIR 2010 SC 235
4. Bodhisattwa Gautam v. Subhra Chakraborty, 1996 AIR 922
5. Justice K.S. Puttuswamy (Retd.) v. Union of India, AIR 2017 SC 4161
   
   Award Winning Article Is Written By: Ms.Ativa Goswami
   

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