Recently, Chhattisgarh High court ruled that the sexual intercourse between man and wife is not rape even if it is done by force. In India, primarily Section 375 of Indian Penal Code (herein after referred as IPC) deals with the rape. The codified section of 375 includes all forms of sexual assault which involves all nonconsensual intercourse with a woman. Section 375 of the IPC reads as “Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:…….”— However, exception 2 of this section exempts unwilling sexual intercourse between a husband and a wife when it is done with over fifteen years of age and thus the act is protected from prosecution. According to the current prevailing law, it is presumed that a wife has already delivered his perpetual consent to have sex with her husband when she enters into marital relations. Around the globe, almost all countries have criminalized the marital rape. However, India is among the other thirty-six countries that still have not criminalized the marital rape. But, it is also notable that Supreme Court of India in the Judgment of Independent Thought v. Union of India, have criminalized the unwilling sexual contact with a wife between the age of fifteen and eighteen years. In this article, we will see the constitutional validity of Exception 2 of the Section 375.
VIOLATIVE OF ARTICLE 14 OF THE INDIAN CONSTITUTION.
Article 14 of the Indian Constitution states that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. In one hand, where the constitution provides equality to all, on the other hand, the criminal law discriminates the female who have been raped by their own husbands.
This law finds its footprint in the colonial era. At that time the women were treated as a cattle and this law is based on the “Doctrine of Coverture”. However, the time has been changed now and women must get their rights which are enshrined under the Constitution of India.
Exception 2 of Section 375, is inconsistent with the provision of Article 14 insofar it is discriminatory in nature. This section creates two different classes of women based on the marriage status. This classification is constitutionally invalid and is inconsistent with the doctrine laid down in the judgment of Budhan Choudhary v State of Bihar and State of West Bengal v. Anwar Ali Sarkar, where it was held that the classification should have some rational nexus to the objective that the act seeks to achieve. However, in the current scenario, exception 2 of section 375 doesn’t qualify the ‘reasonable test’ as it simply exempts husbands from punishment, which is totally contradictory with the objective. Furthermore, this exception also encourages husbands to establish forcefully sexual intercourse with their wives, as the act of husband is neither discouraged nor penalized by the law. Therefore, no rational nexus can be inferred between the classification created by this exception and the underlying objective of act. Thereby, it doesn’t satisfy the ‘reasonableness test’ and therefore it is violative of Article 14 of the Indian Constitution.
VIOLATION OF ARTICLE 21.
Article 21 of the Indian Constitution states that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” Supreme Court while interpreting the clause of Article 21, in the judgment of State of Karnataka v. krishnappa, it was observed that “Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female”. Furthermore, in the same judgment the court further observed that whenever a non-consensual sexual intercourse takes place, it amounts to physical as well as sexual violence. Later on, Supreme Court in the year 2009, in the judgment of Suchita Srivastava v. Chandigarh Administration, while dealing with Article 21, equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity.
Recently, Supreme Court in the year 2018, in the landmark judgment of Justice K.S. Puttuswamy (Retd.) v. Union of India, recognized the ‘right to privacy’ as a fundamental right. Furthermore, it was also observed that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations”. The above decision of the court doesn’t create any difference between married and unmarried women. Therefore, it is applicable universally and a woman doesn’t losses the rights enshrined under article 21 after the marriage.
Moreover, exception 2 is also inconsistent with Article 21’s ‘right to live with a healthy and dignified life’ as held in the judgment of C.E.S.C. Ltd. v. Subhash Chandr.
CONCLUSION
The above discussion clearly shows that exception 2 of section 375 clearly violates Article 14 and 21 of the Indian Constitution. Renowned scholar Dr. Br. Ambedkar once observed that “I measure the progress of a community by the degree of progress women have achieved”. In India, which is always knows for its vast diversity and culture, such laws prevailing is a dark side of it. Women should not be treated merely as an object. They must be stand on equal footage. Now, it is high time when Indian criminal jurisprudence should strike it down.