Author- Sumiara Begum
“No means ‘No’. And when a girl says so, you stop” – Amitabh Bacchan (The Movie “Pink”)
Deliberately including this quote from the well known Indian movie Pink shall bind us to think the depth of this simple yet intriguing dialogue. Rape, sexual violation, threat of such kind of physical or sexual intimidation is a crime. Regardless, whether the victim is a single young lady or a married woman, Rape is Rape. If the lawmakers within the ambit of rape have included every women, regardless of their age, caste, religion, etc to be protected under Section 375 of Indian Penal Code, why then the Exception Clause (2) of the same Section defeats its purpose to protect women who have been married or term her as a “victim” and safeguard the culprit who happens to be her spouse.
When Susan Brownmiller quoted: “Rape is a conscious process of intimidation by which all men keep all women in state of fear” – Susan Brownmiller (Against our will: Men, Women and Rape), the Americans crowd swarmed themselves to gather knowledge from this influential piece she had just publish which linked a direct connection between women’s fear and sexual aggression, stating that sexual violence is used by men to intimidate women and keep them fearful. During then1970’s when women’s rights group initiated Anti- rape Movement demanding for sexual autonomy over their own bodies, including within marriage the nations worldwide alarmed themselves to recognize the same. Consequently, by 2019 marital rape has been criminalised by about 150 countries. However, India is among the 35 countries that have chosen to not criminalise marital rape.
Marital rape is not a punishable offence in India; instead, under Section 375, Exception Clause 2 of the Indian Penal Code explicitly decriminalizes it. It explicitly denies admitting Marital Rape as an offence for married women, but, under the same section provides protection for single women who fall victim to non- consensual sexual intercourse, sexual violation, rape and other such offences which has the same probable meaning. The question here now arises that when India has successfully amended various sections of different statutes to protect woman which evidently remains ineffective, provided punishment for the perpetrators to an extent that satisfies the public at large; but what exactly it is about Marital rape that is prohibiting India to remove this exception clause and insert the word “married woman” as the victim and the “spouse” or “husband” as the perpetrator?
India accepts both men and women as an independent being. The country also accepts the cruelties of domestic violence, it accepts the fact that the crime rates against women is alarming and yet it fails define marital rape as an offence immunizing the culprits, hence, endangering the victims. Statistics have shown piled up census of data’s where 99.91 cases goes unreported and that the average of woman is 17 times more likely to face sexual violence from her husband than any other stranger. But really who cares about these census when one doesn’t even understand what a marital rape is. In layman’s language, you wouldn’t even know if your next door neighbour who is a woman of 22 or 35 or 49 years of age is getting forced to have sexual intercourse with her husband, by her husband. For anyone who is a single woman, regardless of the fact whether you have faced or have not faced sexual harassment, imagine the perpetrator living with you inside your home, being around you.
Marital rape is one of the least discussed topics in India. Our country continues its patriarchal outlook considering women as a property of men post marriage with no individuality or power over their bodies. This bring us to the concept of marital rape in India which is the paragon of “implied consent to sexual intercourse and not otherwise”. Indian Penal Code also implies the same with its Exception clause (2) or Section 375 which says sexual intercourse or a sexual act by a man with his own wife, the wife not being under 15 years of age, is not rape”. This section thus creates a classification between consent given my married women below 15 years of age and married women over 15 years of age. This classification does not blue tick the “intelligible differentia” and is, hence, prima facie in contravention to Right to Equality under Article 14 of the Indian Constitution. Not only Article 14, but indeed violates Article 21 under which the Supreme Court included the sanctity of women, freedom to make choices related to sexual activity.
The United Nations Declaration on the Elimination of Violence against Women defined violence against women with a wider meaning including terms that condemns all acts that would violate the body, mind of a women for her being a “gender” that is ought to be a victim of pain, suffering and discrimination at public or in private life.
Time and again, landmark cases in the Indian history (like State of Karnataka v. Krishnappa, Suchita Srivastava v. Chandigarh Administration, Justice Puttuswamy v. Union of India and the JS Verma Committee), condemned Marital rape and has said to keep no bar in the marital status of a woman who seeks for justice for acts done to her against her will, without her consent. Yet, the Indian Legislation has nothing to offer and sadly, the Centre was seen to be resistant to the 2018 Bill introduced by Shashi Tharoor in the Lok Sabha.
On 24th March, 2020 Prime Minister Narendra Modi with less than 4 hours of notice, has declared a nationwide lockdown for 21 days to contain the spread of Corona virus. As a result, many women found themselves trapped inside their home with their abuser. The need of the hour then was to contain the spread of Covid, but the threat imposed on women for the same heightened as there wasn’t anything they could even do to report such instances of their abuse or to seek help. Reports of abuse swarmed more than it did prior pandemic alarms and the law have failed themselves to protect women yet once again. Needless to say, the need of the hour is a marital rape law which would provide a sense of security to women. Critics disagreeing to the striking down of Exception Clause (2) of Section 375 have to understand that it is an outdated provision which vehemently fails to recognise married woman as an independent entity.
Being married doesn’t remotely mean consensual sexual intercourse only where the spouse would forget that the marriage includes two humans and not a woman who shall be deemed to be his property and abuse her as he wishes. Simultaneously, it shall also not mean that the institution of marriage or its serenity is being challenged on the same ground, because when rape happens it happens between a man, or many men against one women regardless of her retaliation, disagreement, religion, caste or age. Marital rape is indeed a dreadful slur on the dignity of woman and her human rights.
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