Ex-CJI Dipak Misra's argument in favour of non-criminalisation of marital rape insults institution of marriage
It’s safe to say that the non-criminalisation of marital rape remains the biggest blot on the face of fundamental rights jurisprudence in India.
The existence of marital rape in a country like India, whose Constitution upholds all the basic civil rights, is unacceptable.
India today has to rise above the sexist notion of wifely duty of acting as a chattel for her husband.
The forceful act of sex by a husband violates the personal bodily autonomy and is therefore against the constitutional mandate of privacy.
The legal community was shocked when the former Chief Justice of India, Justice Dipak Misra, at a conference at KLE Society’s Law College in Bengaluru said that marital rape should not be criminalised in India “it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values”.
This claim, which has raised furore, comes from the judge who had in the recent past passed judgments that have upheld the civil rights of the citizens of the country and have made India move on a progressive path. It was Justice Misra who was at the centre of the judgments that decriminalised homosexuality, allowed women to enter the Sabarimala temple, struck down Section 497 of the IPC which pertained to adultery, upheld the right to die with dignity as well as delivered Hadiya and Khap panchayat judgments that helped develop a jurisprudence of transformative constitutionalism.
However, the existence of marital rape in a country like India, whose Constitution upholds all the basic civil rights, is unacceptable. The offence of marital rape gets its validation as Exception 2 to the offence of rape under Section 375 of the Indian Penal Code, which reads as follows:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
The origins of the exception can be traced down to the Victorian era during which Sir Matthew Hale, in a 17th century judgment, had stated that the “husband cannot be alleged guilt-ridden of rape committed by himself upon his lawful wedded wife, for by their shared nuptial consent and contract, the wife gives herself to the husband which she cannot withdraw.” The United Kingdom has since progressed and made it a crime after a judgment of 1991 and subsequently by an Act of 1994, but India is still struggling with the colonial hangover while trying to find shelter in the argument of the institution of family for the continuing existence of such a heinous crime.
In India, any law or provision of the law, which stands in direct contravention to the Constitution, is struck down as being ultra vires to it. Marital rape, as a concept, goes against the letter and spirit of Article 14 — Right to Equality, and Article 21 — Right to life and personal liberty of the Constitution. Article 14 protects individuals from unequal treatment in the country. It therefore prevents any unjust and unreasonable classification of people. The exception of marital rape creates an unreasonable and arbitrary classification between the women based on their marital status as it allows for the violation of the bodily autonomy of married women by their husbands. Therefore, Article 14 is violated by the existence of the exception of marital rape.
Article 21 of the Constitution of India, which guarantees the right to life and personal liberty, has various facets. Right to a dignified life, right to good health and right to privacy form a formidable part of it. Marital rape directly contravenes all these rights. The fundamental right to live with human dignity is one of the most vital characteristics of the right to life which acknowledges the independence of an individual. The Supreme Court has held in many cases that rape infringes upon the victim's right to life and the right to live with human dignity. Therefore, by logical extension, forceful sex by a husband with his wife should be considered as rape and a violation of the woman’s right to live with human dignity.
The right to good health has been recognised by the court as being imperative for the life and liberty of an individual. Marital rape infringes upon the right to good health of a victim as the forceful act causes grave psychosomatic injury as well as bodily harm to the victim. It subjects her to deep emotional stress. Further, the Supreme Court has only last year recognised the right to privacy of an individual. The right to bodily autonomy, a part of which is the sexual privacy of the wife, has been recognised as a facet of the right to privacy. The forceful act of sex by a husband violates the personal bodily autonomy and therefore is against the constitutional mandate of privacy.
Hence, it’s safe to say that the non-criminalisation of marital rape remains the biggest blot on the face of fundamental rights jurisprudence in India.
The end to the immunity to the offence of marital rape is long overdue in India. The problem that is faced by our country is that due to the ingrained patriarchy, the offence of marital rape is taken to be an acceptable social norm. This is quite visible in a report by the UN that pointed out that 69 percent of Indian women agree to the domestic violence which they are subjected to, which includes the times when they refuse to have sex with their husbands.
To make an argument that criminalising marital rape will break down the institution of marriage is itself ridiculing and trivialising the institution to an extent where an abusive relationship is confused to be the same as that which rests on the bonds of real love and affection.
India today has to rise above the sexist notion of wifely duty of acting as a chattel for her husband, as other than being morally wrong, it is also against constitutional morality and therefore legally untenable.
Raghav Pandey is an Assistant Professor of Law at Maharashtra National Law University, Mumbai and Neelabh Bist is a Fourth Year student of Law at Maharashtra National Law University, Mumbai.
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