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Marital rape: Implementation of procedural law

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Recently a long going discussion is again in the lime light when RIT Foundation is before the Delhi High Court with a petition of criminalise marital rape by removing it as an exception to Section 375 of Indian Penal Code, 1860. ‘Section 376B of the Indian Penal Code, 1860’ defines sexual intercourse between by husband wife during the period of separation either judicial or otherwise. The provision states that during the time of judicial separation or otherwise if the husband has sexual intercourse with his wife without her consent would be punishable with imprisonment for a period not less than two years which can be extended till seven years and fine. None of the statutes give a licence to the husband to have sexual intercourse with his wife and without wife’s choice or consent.

‘The 42nd Law Commission Report’ was the first report dealing with marital rape as an issue. The suggestions made by this report were that the exception clause under Section 376B should not be there in case of judicial separation. The reason as to why this clause should be removed is not clear. The suggestion points out that consent of the wife is implies when they live together and otherwise it isn’t. In the 172nd Law Commission Report it was argued that when violence by husband to her wife is criminalized then why the law makers are not making marital rape as an offence under the penal provisions. The Commission rejected the arguments by stating that criminalizing marital rape will lead to excessive interference in the marital life of persons.

In 2012, a committee was formed under the chairmanship of Justice J.S. Verma (Retd.) to deal with the nationwide agitation in support of criminalising marital rape in India. The report published by this committee was named as ‘Report of the Committee on amendments to Criminal Law’ commonly known as ‘J.S. Verma Report’. The recommendation of this report was firstly to delete the exception given under section 376B of the penal law. This committee also recommended that the accused cannot defend himself by saying that he had a marital relationship or a relationship of the same kind in a case where the consent of the woman is to be determined. The Report also mentioned the decision of the European Commission of Human Rights which stated that ‘rapist remains a rapist regardless of his relationship with the victim’.

Criminal Law Amendment Bill, 2012 was drafted which included replacing the word ‘rape’ with ‘sexual assault’. But the amendment bill did not contain any provision to extend the ambit of penal provisions in respect of marital rape.  In the ‘167th Standing Committee Report on Home Affairs’,it was suggested that Section 375 should either be amended and the exception clause should be deleted. The Committee refused the suggestion saying that this will give stress to the families involved. The Committee also contended that there is a sufficient remedy present under cruelty under ‘Section 498A of the Indian Penal Code, 1860’.

In the case of Queen Empress v. HareeMythee the court observed that the rape laws are not applicable in case of wife who is more than fifteen years of age. But the husband cannot ignore the physical safety of her wife even though she is above fifteen years of age.

The Andhra Pradesh High Court in T. Sareetha v. T. VenkataSubbaiah strike down Restitution of Conjugal Rights. It was contended that this concept violated the rights provided under Article 14, 19 and 21 of the Indian Constitution. The Court agreed to this by stating that this transfers woman’s right to indulge in sexual activity to the State.  In the matter of Saroja Rani v. Sudarshan Kumar Chada, Section 9 of the Hindu Marriage Act was held constitutionally valid. The Court said that the main purpose of keeping restitution of conjugal rights as part of the act is to protect the marriage and it does not violate Article 14 of the Constitution. In all codified religious laws both husband and wife are given an equal status and there is no discrimination on the basis of gender alone. But while considering sexual intercourse why is there inequality in respect of consent of the woman? The Supreme Court in the case of State of Maharashtra v. Madhkar Narayan held that no person can intrude the sexual privacy of a woman and every woman is entitled to enjoy such privacy and nobody can violate her privacy as and when he pleases. The court believed that every person has right to privacy over one’s own body.

In Independent Thought v. Union of India, the court believed that there is no reason to treat woman differently on the basis of marriage. The Court had to strike down a part of the exception clause because under the ‘Protection of Children from Sexual Offences Act, 2012,’it is illegal to have sexual activities with a woman below eighteen years of age. In contrary to this the exception clause allows the husband to indulge in sexual activities with her wife who is above fifteen years of age. The Gujarat High Court in the case of NimeshbhaiBharatbhai v. State of Gujarat stated that marital rape is disgraceful with respect to women in India but it did not strike down the exception clause nor did the court order the government to do the same.

Marital rape is infringing the fundamental right to live with dignity under article 21 of the Constitution of India. It is the duty casted upon the state to make proper norms to make marital rape as penal offence and criminalize this act. State cannot take the defense that there are different other recourses available for the wife to move to the court. It is to be considered that the sanction of the offence should be proportionate. As we have mentioned that most of the common law countries have criminalized the marital rape, we should also do the same as it is the correct time to do so.  Until and unless proper sanction will not be inserted in the substantive laws, the law would not be effective to curb the offence such as marital rape.

Indian Judiciary at different instances has shown that rape is the problem for the society. Non Criminalization of the marital rape indirectly is promoting this offence against women. Also this is not just about women but vice versa but this is the fact that family structure of India is such that women have always been given the secondary status in the family. This is the reason that such offences occur. Also the view that criminalizing marital rape would be interference to the personal space of the marital relationship is wrong. Though there is the personal space but constitution protects casts the duty upon the state to protect the rights of an individual in the personal space.

The only issue which is in front and obstructing the court not to criminalise is that how it will be proved that whether sexual intercourse was consensual or not as it is a private affair in a very private space. Hence it will directly harm the institution of marriage and will go in favour of wife.  But by not criminalizing marital rape basically the criminal justice system of India is supporting the notion that wife is mere property of the husband. It is recommended that the time has come to recognize the marital rape as an offence this can only be done when we are having the approach that there are individual rights of the women. Society has to recognize that after the marriage also there are existing individual rights of the women. Once the Indian society recognized this then the marital rape would be considered as the offence in India.

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