Case Studies:

• Independent Thought v. Union of India;
• Justice K.S. Puttuswamy (Retd.) v. Union of India;
• Govind v. State of M.P;
• Kharak Singh v. State of U.P

The term Rape was 1st time introduced and clearly defined in the Indian Penal Code, 1860 made after the 1st law commissions efforts under Lord Macaulay.

Section 375 of the IPC makes it punishable for a man to have sex with a woman if it was done against her will or without her consent. It is also a rape if the sexual intercourse was done when her consent was obtained but putting her or any other person in whom she is interested, in fear of death or hurt.
Section 376 provides for seven years of jail term to life imprisonment for rape.

Sex with a girl under 18 years, done with or without her consent is considered a rape. But surprisingly, under Exception 2 to section 375, sexual acts or intercourse by a man with his wife (above 15 years of age) without her consent is not considered a rape. This exception is popularly known as the Marital Rape exception.

Independent Thought v. Union of India, 2013 Judgement of Supreme Court:
In 2013, an organization that works for the rights of women and child, Independent thought challenged the exception 2 to section 375 of IPC before the Supreme Court.

Issue in this case was:

• The legality and constitutionality of exception 2 to sec. 375 of IPC.

The Supreme Court's findings:
Exception 2 created an artificial distinction between a married' girl and an unmarried' girl. This arbitrary classification between minor girls on the basis of their marital status violates Article 14.

The parliament has powers to make laws on welfare of child and women under article 15(3). POCSO was such a legislation made under Article 15(3), therefore POCSO laws have overriding effects on any other law. It was found that the POCSO Act 2012, set the minimum age for consensual sex as 18 years. But exception 2 to sec 375 was contrary to this. POCSO criminalized penetrative sexual assault with children below 18 years but exception 2 did not criminalize it, (i.e. for married girls above 15 years.)

So if there is an artificial distinction between rape of married girl and aggravate penetrative sexual assault then it is violation of Article 15(3).  

The exception 2 ignores those victims of forced or early marriage- to find any recourse to criminal law against forced sexual intercourse by the husband. !

Thus this deprives the girl of her right to life, bodily integrity and dignity under article 21. It also violates right to privacy as thr right of privacy has recently been upheld by the Supreme Court in Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017)

Also, this exception has no measures against trafficking of a girl child. This was arbitrary and discriminatory in nature, hindering the best interest of a girl child.

Since exception 2 of section 375 of IPC violated Article 14, 15 and 21 of the Indian constitution and puts a girl's physical and mental health in serious jeopardy. Therefore it was read down by the Supreme Court of India in Independent Thought v. Union of India, 2013.

Exception 2 to section 375 of IPC, would not apply to minors.
It now reads as follows: €œSexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.€

Finally, girls below 15 years were safe from marital rape, but till today adult married women are not.

Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161
The case, brought by retired High court Judge, Puttaswamy, challenged the governments proposed scheme for a uniform biometrics based identity card which would be mandatory for access to government services and benefits.

The government argued that the constitution did not grant specific protection for the right to privacy. But the court reasoned that privacy is an incident of fundamental freedom or liberty guaranteed under article 21 which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law.

The government argued that constitution did not grant specific protection for the right to privacy. They made reference to observations made in the case of M.P.Sharma v Satish Chandra and Kharak Singh v. Uttar Pradesh.

The nine judge bench of the Supreme Court unanimously recognized that the constitution guaranteed the right of privacy as an intrinsic part of the right to life and personal liberty under article 21. The court overruled M.P. Sharma and Kharak Singh case as they did not expressly recognized right to privacy.

It was highlighted that privacy included the right to make choices for oneself. Privacy is a concomitant of dignity and every individual enjoys autonomy over their most personal and intimate decisions.
 
The court highlighted that right includes autonomy over integrity (reproductive rights), personal decisions (like, food choices), and protection of personal information (e.g. privacy of health records) .

€œRight to abstain€ from sexual intercourse
Right to abstain is a question of personal liberty under Article 21 of Indian Constitution and a right to privacy.

The right to privacy is not expressly recognized as a fundamental right, it was an essential ingredient of personal liberty under Article 21 of the Indian Constitution.
In Independent thought vs. union of India, criminalizes unwilling sexual contact with a wife between fifteen and eighteen years of age. In recent years courts have begun to acknowledge a right to abstain from sexual intercourse.

In State of Karnataka v. Krishnappa, the Supreme Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. It also said that non-consensual sexual intercourse amounts to physical and sexual violence.

The right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under article 21 of Indian Constitution was established in Suchita Srivastava v. Chandigarh Administration.

Govind v. State of M.P, AIR (1975) SC 1378
Govind, an accused of a number of crimes was listed as a habitual criminal and was subject to a number of surveillance by the Madhya Pradesh police under regulation 855 and 865 of the Madhya Pradesh Police Regulations. There were irregular visits to his homes to ensure that he does not indulge in any criminal acts which are against public security.

He said that this was not in accordance with his right to privacy.
The court found that right to Privacy is not explicitly provided under the constitution of India. It can only be implied from article 21, that's why it is not an absolute right in its entirety. Therefore reasonable restrictions could be imposed on a person's right to privacy.

Domiciliary visits were not regarded to be violative of the right to privacy as these were reasonable in nature and had the objective to secure public interest.

A right to privacy could be overshadowed by a law that had reasonable grounds and for benefit of people.

The exception 2 to section 375 of IPC is an invasion of right to privacy, because it is unreasonable. It is not for a reasonable justification or for any person's benefit. The unconsented sexual activity may be hazardous to the health of a woman. Therefore it is not for any sort of public good. Therefor by the Govind v. State of M.P judgement also, an un-consensual or forced sex in a marriage by a husband amounts to invasion of wife's privacy.

Kharak Singh v. State of U.P, (1963) AIR SC 1295

Kharak Singh challenged the domiciliary visits at night by the Uttar Pradesh police under their surveillance plan saying that it was violation of his right to personal liberty and free movement.

The domiciliary visits was struck down as unconstitutional. The Supreme Court also judged that privacy was linked to personal liberty. The majority ruled that privacy was not a guaranteed constitutional right, however it held that article 21 was the repository of residuary personal rights and recognized the common law right to privacy.

Importance of Consent
Every individual has a right to privacy and that provides them the right to make personal choices. Consent is an agreement to participate in a sexual activity. Consent is given freely, without pressure, manipulation or under the influence of alcohol.

Consenting and asking for consent are important as it is respecting the personal boundaries of the partner.
Without consent, sexual activity is sexual assault or rape.

Changes needed in the legislation Suggestion:
Justice Verma committee report suggested that the marital rape exemption in the IPC must be withdrawn. It must be done to protect the rights of married women and give them physical and sexual right. Criminalization of marital rape is the most urgent need of the hour.

Conclusion
Although minor married girls were protected from marital rape by Independent Thought v. Union of India, the journey of a married woman to achieve complete autonomy and privacy on her body and decisions is very long and seems tempestuous.

Exception 2 violates the right to equality enshrined in article 14 as it discriminates against married women by denying them equal protection from rape and sexual harassment. It creates two classes of women based on their marital status.

The exception immunizes actions of husbands that are done without consent of wife.

The Supreme Court held in State of West Bengal vs. Anwar Ali Sarkar, that any classification under article 14 of the Indian constitution is subject to a reasonableness test that can be passed only if the classification has some rational nexus to the objective that act seeks to achieve. But exception betrays the purpose of section 375, which is to protect women and punish those who engage in sexual activities without their consent. Therefore the classification is unreasonable and discriminatory.

Be it a married or unmarried, a woman who is raped faces life-time emotional trauma. But it must also be noted that it may be more difficult for a married woman to escape abusive conditions at home because they are not legally protected from unconsented sexual activity.

The exception is against Justice K.S. Puttuswamy (Retd.) v. Union of India, that an individual enjoys autonomy over their most personal and intimate decisions including their sexual decisions! The privacy of a human being include their decision to make choices for themselves and their body.  And any sort of pressure on suppression of that right is torturous and unacceptable. Every person has right to privacy, right to choice and right to deny consent irrespective of age, gender or marital status.

The crime of Marital rape goes beyond age. Every women, as any other human being, has a right on her body, be it young or old, married or unmarried. A rape is a rape! even if it is done by the husband. And she ought to be protected from rape under law irrespective of her marital status.
 
Written By: Chetna Garg - Law student from KES Shri Jayantilal H Patel College of Law, Mumbai.
Email: [email protected], Twitter- @LawgicallyCorrect