Abstract
Marital Rape Exception in Indian law, has created a constitutional gap by not criminalizing the Marital Rape and sexual assault in a marriage. The exception of marital rape sits uneasily to constitutional rights of equality, dignity, and bodily autonomy.
Introduction
The concept of Rape is defined in legal statues; it has evolved over centuries to understand the concept of fundamental principle of consent. A glaring Exception the nation that a man cannot Rape his own wife, this is the Marital Rape Exception. The patriarchal beliefs sees a wife as a property of her husband which has created a legal and constitutional gap. The legal provisions and constitutional challenges surrounding in India. This Exception is a legal loophole but also a constitutional failure which is leading inequality and violating the fundamental rights of women’s. The statutory Criminal law and Constitutional law. Must be considered together, the important thread to consider together and the interaction of these threads is where the legal debate over Marital Rape plays out.
Keywords:
Marital Rape Exception: Section 375 & 376 of IPC, Article 14 & 21 of Indian constitutional, independent though, criminalisation, Domestic violence, and protection of women’s.
The root of the Exception
Indian Penal Code came into force in 1860 during the British colonial rule, the definition of Rape is inherited from the English common Law. The two archaic English doctrine, the Doctrine of Coverture and the Doctrine of Hale. The first Doctrine of Coverture held that in the marriages the legal identity of the woman’s was covered by her husbands. After marriage she lost the capacity to enter in any kind of contract or sur independently. The husband and wife were considered as one legal personal and that legal person was husband.
Second The Doctrine of Hale held that the husband cannot not be guilty for Rape committed by himself upon wife in which she cannot retract. In its essence that the marriage is constituted an irrevocable consent to sexual intercourse. These Doctrines treated the women as non-legal entities and perpetual subjects of their husbands.
Statutory position and Provisions
Section 375 of Indian Penal Code that make” Rape”, exception (2) of this section deals with Marital Rape Exception. It is historically excluded that the intercourse by a husband with his wife from being rape. Section 376 of the IPC deals with the punishment for rape. Other relevant acts include the protection of Children from sexual Offences Act which applies in irrespective manner of marital status where minor are involved and such as Domestic Violence Act, 2005 which provides the civil remedies but no strict penalties for non- consensual intercourse within marriage. Recently The Bhartiya Nyaya Sanhita, 2023 is set to replace the IPC, Section 375 re-codifies as Section 63(2).
A failure of Fundamental Rights
The martial rape exception is affront to several fundamental rights. It creates a legal framework where the women’s are treated as a lesser class deprived of the same protection against sexual assaults that are available to unmarried women’s. Violation of article 14 of the Indian Constitution, it guarantees equality before law and equal protection of the law. The Martial rape fails by creating a discriminatory distinction between married and unmarried women’s. It suggests that a married woman bodily integrity is subordinate to her marital status.
Article 15 of Indian Constitution prohibits the discrimination on the basis of gender, caste, and religion but the marital rape exception discriminates against women based on their martial status.
Article 21 of Indian Constitution talks about the right to life has interpreted by the Supreme Court of India to include the right to live with dignity. Forcing a woman for non-consensual sexual intercourse, regardless her martial status is a complete violation of her dignity and her personal life.
In Navtej Singh Johar v. Union of India 2018, the Supreme court held that the marital rape exception is unconstitutional. a person’s body is their own, and this right is not vanish on the basis of marriages. It is not a mere legal gap, it I also a fundamental constitutional failure to protect the rights of women’s.
Judicial Discourse
The Indian judiciary system has been the primary arena for challenging the cases of martial rape. The courts have shown more progressive and stance. In Case Independent Thought v. Union of India 2017: This case was considered as partial victory. The Supreme Court held that the sexual intercourse with a wife between the age of 15-18 without her consent it will consider as Rape. The court also held that marital rape exception for minor wives was an arbitrary and violative of fundamental rights. This significant step of Supreme court acknowledged that a husbands right to sexual relation with his wife could not override her fundamental rights to bodily integrity and dignity at least in the case of minors.
The justice Verma Committee Report 2013
After the horrific Delhi gang rape case, they strongly recommended the criminalization of marital rape. The justice Verma Committee asserted that that marriage cannot be a defence for sexual violence, the recommendations were not fully incorporated into the criminal law amendments.
Conclusion
The marital rape exception is a legal issue that has no place in a modern, democratic society. It is a found as a legal gap and most important a constitutional failure of women’s dignity, equality and personal liberty. There is no article under Indian Constitution which grants the right to husband ownership of his wife’s body. law must reflect this reality that marriage is union of equals. The solution is not to amend the sections exception but to abolish the concept of marital rape. By criminalizing the marital rape India will full fill its constitutional promises of a free society from gender discrimination and violence.
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WRITTEN BY Manisha Kunwar
