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THE CONSTITUTIONAL VALIDITY OF THE SECOND EXCEPTION TO RAPE.
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THE
CONSTITUTIONAL VALIDITY OF THE SECOND EXCEPTION TO RAPE.
AUTHORED BY - IPSHA SHRIVASTAVA
ABSTRACT
This paper analyses the need for striking down the
provision of the second exception to rape. This provision has already been
challenged in various cases in the Indian judicial system and the need to
provide for the penalisation of the offence of marital rape. The test of the
validity of such a provision in context of fundamental rights has been examined
and the patriarchal mindset behind not been amending such a provision has been
criticized. A law or provision which is in violation of fundamental rights is
justified to be struck down beyond any doubt. Laws are made for a social cause
to benefit the people and deter someone from committing any offence. Women are
equally an important part of the society, existence of both men and women are
necessary for the society. In such a situation, it is necessary that even
people with liberal thoughts start valuing the rights of women which are
fundamental to their intellectual and physical well being. Social morality will
not exist in subservience on the part of women solely. Thus this paper is a further
analysis of these thoughts which tries at best to defend every argument against
amending or striking down such provision.
Keywords: Marital rape, sexual intercourse,
constitutional validity, consent, social morality, dignity.
INTRODUCTION
The constitutional validity of this
provision had already been in question and been a topic for contentions and
arguments. The second exception to rape which states sexual intercourse by a
man upon his own wife under 15 years of age do not classifies as rape. This has
been changed in the case of Independent Thought vs. Union of India[1]
where the court held that non consensual sexual activity between the ages of 15
and 18 years with or without the consent of the girl, immaterial of the girl
child being his wife or not, is illegal. Until this judgment, penetrative
activity with a married girl between the age of 15 and 18 years was not
considered a crime. Justice Deepak Gupta gave his views where he said that the
makes it is probably obvious that anyone under the age of 18 years is a child as
in this age they are still developing and are not capable of understanding the
repercussions of his or her actions .Therefore, under Exception 2 of Section
375[2]
raping a married girl between the ages of 15 and 18 is a felony under Section
5(n) of the POCSO rather than the IPC because it constitutes aggravated penetrating sexual assault,
which carries a penalty under Section 6[3].
This shows that once already the constitutional validity of the second
exception to Section 375 of IPC has been held upon which brought upon
amendments in this provision. This exception was held arbitrary in regards to
protect the interests of the girl child and safeguard their right to bodily
autonomy. Even after this amendment, the provision has been in question due to
its unfair application over a certain class of people, married women above the
age of 18 years. Despite, this provision has declared any sexual intercourse by
a man upon a girl below the age of 18 years as illegal immaterial of married or
not, it do not provide any immunity to the married women against such forced
sexual intercourse. Rather, it works as an exception to rape and defends a man
who had forced sexual intercourse with his married spouse. The provision of
rape was created because it disregarded sexual intercourse by a man upon women
without her consent. This was regarded as a social offence because men tied with
women shall be loyal to her and latter should devote her body only to the men
with whom her marriage will be affixed.
Marriage is viewed as
being the same as consent.The body of a woman does not belong to a husband, and
marriage is a social arrangement rather than a general licence for sex. Only a
woman has the authority to decide whether she wishes to participate in sexual
activity on her own or accepts her husband's demands for it. When there is no
permission, the same offence is criminalised, but if the same offence is
committed against a married woman, immunity is granted.
Do married women lose her
right to consent to sexual intercourse upon being married?
The act of engaging in sexual
activity like this without the wife's consent has recently come to be
characterised as marital rape. Marital rape occurs regardless of the kind of
marriage, age, social standing, race, or ethnicity. Marital rape occurs when a
man has "unwanted intercourse" with his wife, whether by physical
violence, verbal abuse, or when she is unable to consent.The phrase
"unwanted intercourse" refers to any type of penetration (whether
oral, vaginal, or anal) carried out against her will or without her agreement.
Cases of unwanted and violent sexual intercourse have been up in the recent
years, which have particularly raise up this concern. Women are being battered
using force or threat and they are being forced to be submissive towards men.
But tolerance must not to be an extent that it becomes traumatic and life
threatening. The state cannot disregard this issue in the name of degradation
of marital relations and family institutions falling in the private sphere. There are 34 countries which have not
criminalized marital rape and India is one of them. This provision works as an
exception having been justified by Lord Macaulay to protect the matrimonial or
conjugal rights of a husband. There have been active parliamentary discussions
and debates regarding the removal of this provision. Such criminalization has
not taken place in India. As Englishmen established Indian laws while they were
in power in India. The majority of the laws are therefore based on British
standards. Women were not treated equally to males back then, and married women
did not have their own independent legal status. So, after marriage, a woman is
being viewed as a chattel owned by a man and the existence of women is being
decided by men. In this predominantly male community, marital rape was seldom
understood or acknowledged as a serious crime. This shows that even if is known
that this provision has anti colonial origins and is violative of women’s
rights but as such nothing has been done in this regard to protect the victims
of such violence.
The Indian Constitution's Article’s
14 and 21 both forbid this provision, hence it must be repealed. The argument
behind are that women have bodily autonomy and her husband cannot force his
will on him. Such a provision violates a woman’s dignity as specified under
Article 21 and unfairly discriminates against married women as ever person has
the right to be treated with equality and there must be equal application of
laws. It can be compared to rape just being the status of married cannot immune
the husband from such charges.
The Supreme Court ruled in the case
of Bodhsattwa Gautam vs. Subhra Chakraborty that rape is a crime against not
just the victim's person but also the entire society. It completely devastates
a woman's psychology, causes her to suffer from significant emotional and
physical trauma, and makes her more susceptible to various illnesses. As a
result, it violates Article 21 of the Constitution. The right to health is
emphasised in Article 21 of the Indian Constitution. Since marital rape impairs
a woman's physical and mental health and causes her significant psychological
and bodily injury at her husband's direction, decriminalising it has the effect
of violating this fundamental right. Due to its discrimination against married
and unmarried women, this clause is in violation of Article 14 of the Indian
Constitution, which upholds the rule of law.
In the case of Chaudhary vs. State of Bihar[4],
it was held that when any classification is made u/a 14 of the Constitution, only when a
logical connection is made between the classification and the object it seeks
to accomplish is discovered does a test of reasonability take place and is
verified. Any reasonableness test fails to find this classification of women as
justifiable with the exception of rape. This law goes against the intent of the
law and unfairly makes a distinction for the sake of such patriarchal
standards.
On one side the provision protects
women from unwanted sexual activity but on the other side renders permission to
force upon married women, such provision does not serve any social cause.Social
morality exists when the people act emphatically and take into account the
feelings of others but when the vulnerable groups are being disrespected and
disregarded, the constitutional values comes into motion. Ambedkar has defined
Constitutional morality as the Effective coordination of the numerous
organisations working to achieve their goals at all costs, who may have
competing objectives, and administrative collaboration to handle those
conflicts amicably without any confrontation. Social morality must not prevail
in such a manner that it violates the fundamental rights of people.
A woman is usually forced
to be silent or adjust with what is going around with her. But adjustment must
only be tolerable to an extent. She should not adjust when it becomes an atrocity
for her. A man is barred to force sex upon a woman which can be rape. Similarly
a married woman cannot be forced upon by his husband. The status of being a
husband should not give him immunity of such grave violence. There has been
disappointment that the wife every time she feels that she is being forced, she
shall complain and regret the next day. Rape violations being graver can affect
the family but it can be more appropriate if the penal laws are not so strict
and carry compensation. If in marital rape it affects the family as a whole the
same applies to an offender who commits rape. Everyone has a family to feed and
not only a married man. The argument as
agreed by people against criminalizing this provision, that a charge under this
provision will be affecting the whole family does not hold relevance in
penalizing this offence.
There have also been concerns
regarding the possibility that women may abuse any such option. Every law may
be broken, but there is no justification for not passing new legislation.
Several people have been wrongly charged with murder. Does this imply that
murder shouldn't be made a crime? A legal tribunal has been established to
consider any accusations and the supporting documentation before determining
whether the defendant is guilty. Why not marital rape if we have adopted this
method for all other types of crime? The state cannot disregard this issue in
the name of degradation of marital relations and family institutions falling in
the private sphere. Justice DY Chandrachud made an
important observation in Navtej Singh Johar vs. Union of India [5]where
he pointed out that regardless of whether these realms are considered to be
private or public, it is the responsibility of this court to dispel these myths
and advance society. The judicial system has undergone significant reform, but
there is one area that has not changed. The family is that element. Marriage is
a fundamental social institution, and women are shackled to a life of
inequality by established patriarchal norms and romantic paternalism. The
differentiation between the public and private spheres loses significance when
it comes to the protection of constitutional rights. So, even the most private
aspects of marriage relationships are subject to constitutional
examination.
In Nimesh Bhai Bharatbhai Desai v. State of
Gujarat[6],
the court gave the observation that husbands are not allowed to forcibly
without their wife’s consent just because of their marital status.
In India, where there has
been no recognition of this crime, it’s very shameful that women were being
never heard. Even where such grave offences are being inflicted upon women, the
judicial system never tried to examine the provision and is more convinced of
the side of arguments based on social morality. Until this provision is erased
or any other alternative is placed, it is cause of concern for any young girl
going to be married. The justice system of our country is not able to do
justice even in the cases, where the most ideal fundamental rights are being
violated. This situation seems to be really a blindfold in the eyes of lady
justice and the two tray scale not in a balanced state.
CONCLUSION:
It is necessary to follow the
constitutional values which are up and above any social values, it is the
supreme law of the land. The provision without any cause knowingly
discriminates against married women. The consent of married women to sexual
intercourse is as good as no consent. If the provision of rape penalizes a
person to force sexual intercourse to any women without their consent, the same
must be applied to in case of married women, after all everything that matters
is consent. The lawmakers had never intended to push married women to such
violence and non-consensual sexual activity. This needs to be answered that, are
the married women really losing their right to consent to sexual intercourse
after being married. Even after so many decades of our independence, holding
thoughts of British era of women being a property and chattel of men is not
fair. The laws are ever evolving, while it was drafted by the constituent
assembly, provided a certain amount of flexibility so that the laws could be
changed with the needs and situations of the society. While a husband could be
punished for beating and assaulting her wife, but not for raping her. Rape is a
graver offence than other offences relating to women.
In this view, the Supreme Court[7] has recently passed a judgment
where it included abortion in case of rape which also includes marital rape.
This can be considered a progressive step in this regard. If the Supreme Court
can be of such a view then Parliament can also take some positive step in this.
If such a provision does not respect the rights of already a vulnerable class
of people, then it must be amended or the abolished in an expeditious way. Any
classification must be done on the basis of logical connection and it must
sought to achieve the goal intended.
[1]
Independent Thought vs. Union of India (2017) 10 SCC 800.
[2] Indian Penal Code, 1860, §375.
[3] Protection of Children from Sexual
Offences Act, 2012, §6.
[4] Chaudhary vs. State of Bihar( 1974) AIR 1822.
[5] AIR (2018) SC
4321
[7]
SC's Observations 'Welcome' But Marital Rape Still Not Illegal In India, Here
Are Countries Where It Is, Outlook, Sept 30, 2022.
Article Information
THE CONSTITUTIONAL VALIDITY OF THE SECOND EXCEPTION TO RAPE.
Authors: IPSHA SHRIVASTAVA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/08/09
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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