Liscence to rape ?

Oh well !! Society calls it marriage

Introduction

“Again her privacy was getting invade..this time in the name of marriage..again she was getting
raped in the name of marriage..” Rape is something which destroys the victim not only physically
but also psychologically. It is the most heinous crime committed against women which affects
body as well as soul. It is not only individual’s dignity but also of the society as a whole as the act
of using and abusing a women’s body for sexual pleasure without her express or implied consent
is violative of an individual’s dignity. Marital rape or spousal rape is the act of sexual intercourse
with one's spouse without the spouse's consent.Marital rape is often a chronic form of violence for the
victim which takes place within abusive relations. “Truth: Rape does indeed happen between girlfriend
and boyfriend, husband and wife. Men who force their girlfriends or wives into having sex are
committing rape, period. The laws are blurry, and marital rape is legal, but it’s still a rape”. Why
is not any law there for marital rape specifically? There is actually a need of law relating to marital
rape.

Traditionally, rape had been considered as a criminal offence that could only be
committed outside marriage, and courts did not apply the rape statutes to acts of forced sex
between spouses.

Basic ideology behind marital rapes

The property to be withheld in a female was her virginity; this was the commodity. Following this
line of logic, a woman was first the property of her father, then, upon marriage, the property of
her husband. Therefore, a man could not be prosecuted for raping his own wife because she was
his possession. However, if another man raped someone's wife, this was essentially stealing
property. In English customs, "bride capture" was thought to be stealing a father's property by
raping his daughter. Therefore, rape laws were created to "protect the property interests men had
in their women, not to protect women themselves". This concept of women as property permeates
current marital rape ideology and laws throughout the globe

In some cultures, marriage is arranged for the purpose of creating access to procreation. In these
situations, the parties do not necessarily consent to marriage (in the case of forced marriage.
Following this logic, if consent is not part of marriage, then it is not necessary for intercourse

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The autonomy of the wife is also often compromised in cultures where bride price1 is paid.
Under customary law in certain parts of Africa, forced sex in marriage was not prohibited,
although some specific circumstances, such as during advanced pregnancy, immediately after
childbirth, during menstruation, or during mourning for a deceased close relative, were recognized
as giving the wife the right to refuse sex.

Rape has been, until recent decades, understood as a crime against honor and
reputation – not only in domestic legislation, but also in international law; for example according
to the Article 27 of the Fourth Geneva Convention, "Women shall be especially protected against
any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent
assault"

How marital rape became an exemption from rape ??

Sir Matthew Hale's statement in History of the Pleas of the Crown did not cite a
legal precedent for it, though it relied on earlier standards. Hale cite's the jurist Bracton support of
this rule, said to have derived from laws of King Æthelstan where upon the law holds that a lawful
marriage legitimizes the conjugal act itself, so "marital rape" is a contradiction in terms. While a
physical assault against a spouse may be charged, such is distinct from the delegitimization of
conjugal union itself as rape. Marriage then should not be defined as an "exemption" to rape but
as "contradictory" to it. Marriage created conjugal rights between spouses, and marriage could not
be annulled except by a private Act of Parliament—it therefore follows that a spouse could not
revoke conjugal rights from the marriage, and therefore there could be no rape between spouses.

Need of marital laws

India is one of the thirty-six countries that still have not criminalized marital rape and having
nearly highest crime rates. he definition of rape codified in Section 375 of the Indian Penal Code
(“IPC”) includes all forms of sexual assault involving nonconsensual intercourse with a
woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a
husband and a wife over fifteen years of age from Section 375’s definition of “rape” and thus
immunizes such acts from prosecution2. unwilling sexual contact between a husband and a wife
is recognized as a criminal offense in almost every country of the world The Supreme Court of
India and various High Courts are currently flooded with writ petitions

1. Bride price : money, property, or other form of wealth paid by a groom or his family to the family of the
woman he will be married to or is just about to marry
2. Indian Penal Code § 375, No. 45 of 1860, India Code

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challenging the constitutionality of this exception, and in a recent landmark judgment, the
Supreme Court criminalized unwilling sexual contact with a wife between fifteen and eighteen
years of age. This judgment has in turn led to an increase in other writs challenging the
constitutionality of Exception 2 as a whole. In light of ongoing litigation, this Article critically
analyses the constitutionality of Exception 23.

Violation of Article 14 of the Indian Constitution

Article 14 of the Indian Constitution ensures 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.” Although the
Constitution guarantees equality to all, Indian criminal law discriminates against female victims
who have been raped by their own husbands4.

The roots of this doctrine can be traced to British colonial rule in the Victorian
era. The marital exception to the IPC’s definition of rape was drafted on the basis of Victorian
patriarchal norms that did not recognize men and women as equals, did not allow married women
to own property, and merged the identities of husband and wife under the “Doctrine of Coverture.”
But times have changed. Indian law now affords husbands and wives separate and independent
legal identities, and much jurisprudence in the modern era is explicitly concerned with the
protection of women. Exception 2 violates the right to equality enshrined in Article 14 insofar as
it discriminates against married women by denying them equal protection from rape and sexual
harassment. The Exception creates two classes of women based on their marital status and
immunizes actions perpetrated by men against their wives. In doing so, the Exception makes
possible the victimization of married women for no reason other than their marital status while
protecting unmarried women from those same acts.

The Supreme Court held 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 the act seeks to achieve. But Exception 2 frustrates the
purpose of Section 375: to protect women and punish those who engage in the inhumane activity
of rape. Exempting husbands from punishment is entirely contradictory to that objective. Hence
it is in contradiction with article of of the constitution and anything that is in contradiction to
article 14 shall be considered as void5.

Violation of Article 21 of the Indian Constitution

Article 21 states that “no person shall be denied of his life and personal liberty except according

3. Independent Thought v. Union of India, (2013) 382 SCC (2017) (India).

4. India Const. art. 14
5. Budhan vs state of bihar

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 to the procedure established by law.” In recent years, courts have begun to acknowledge a
right to abstain from sexual intercourse and to be free of unwanted sexual activity enshrined
in these broader rights to life and personal liberty. In The 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.” Later, in Suchita
Srivastava v. Chandigarh Administration, the Supreme Court equated the right to make
choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily
integrity under Article 21 of the Constitution.

Conclusion
Yet the very existence of Exception 2, which fails to deter husbands from engaging in acts of
forced sexual contact with their wives, adversely affects the physical and mental health of
women and undermines their ability to live with dignity. The above conclusions clearly reflect
that Exception 2 to Section 375 of the IPC is an infringement of Articles 14 and 21 of the
Constitution. It is time that Indian jurisprudence understands the inhumane nature of this
provision of law and strikes it down.

As rape is rape...why does still Indian penal code treats “she’s my wife” as a defence
?

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