BY Anjali Agarwal
The Indian Penal Code was drafted in 1860. We have come a long way since the year 1860, especially in terms of human rights and mindsets. The same has also been reflected through recent developments made within the IPC itself, such as the striking down of section 377, which repressed members of the LGBTQ community for years. Similarly, the striking down of section 497; which was a long-awaited step forward. But one major issue in the IPC still prevails: Exception 2 under Section 375 of the IPC.
The Indian Penal Code recognises non-consensual sexual acts as an offence, it recognises the difference between consent and when one does not grant consent, it recognises multiple offences that can be committed within a marriage such as Section 494- Marrying again during lifetime of husband or wife and a few others; but somehow, the IPC does not recognise rape within a marriage as an offence. Exception 2 completely dissolves the purpose behind Section 375, which is to protect women and punish those who engage in such inhumane acts in the first place. Exception 2 under Section 375 of the Indian Penal Code states “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
Completion of a marriage ceremony doesn’t grant a spouse an automatic lifelong ticket to consensual sex. Men cannot simply become lawfully empowered to do what rape convicts do, but with their wives, and be immunised to conviction because of a marriage certificate. This not only completely ruins the victim’s life, but also makes it seem as though the man was doing absolutely nothing wrong.While Section 498A of the IPC does recognise cruelty against wives, it limits the explanation of cruelty to specific situations, not including rape.
When the IPC was drafted in the 1800s, women were hardly seen as independent persons who were capable of taking care of themselves; they were seen as chattels of their husbands. The fact that Exception 2 under Section 375 of the IPC exists in 2020, doesn’t just separate women into two classes based on marital status where one is allowed to get justice and one is not, it promotes a toxic sense of entitlement amongst men, and more so amongst the youth- which consequently results in women being put down further and being made to feel as though their permission isn’t even remotely relevant.
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In the Report of the Committee on Amendments to Criminal Law, the Verma Committee recommended the criminalisation of rape in 2013, but opponents believed that the criminalisation of marital rape would ‘destroy’ the institution of marriage and allow wives to ‘fabricate’ claims, since rape within marriage was ‘difficult to prove’. The fact that a victim of rape is in a relationship with the perpetrator cannot be a defence against the crimes of rape or sexual violation- the relationship is irrelevant, as pointed out by the Verma Committee. Imagine trusting a man enough to marry him, to live with him, to believe that he respects you and your decisions, and then not only seeing all the faith you have put into him being completely disregarded and violated, but not even being able to do anything about it legally. Having an exception to a crime as barbaric as rape, under an official legal document of a democratic and republic state is shocking and humiliating.
The consequences of rape should be made the same, whether it is being done by a husband upon his wife, or by anybody else. Moreover, married women may even find it more difficult to come out of an abusive relationship because they may be financially dependent on their husbands. Because of the nature of the act itself, no rational nexus can be drawn from the classification created by Exception 2 under Section 375 and the underlying objective of the Act. Taking this into account, marital rape is a clear violation of Article 14 of the Constitution of India since it in no way passes the test of reasonableness.
In the case of Independent Thought v. Union of India , it was argued by the petitioners that Exception 2 created an unconstitutional classification between wives under the age of 15, and those between 15 and 18 years of age. It was held by the court that the marital rape exemption should only cover cases where the woman is 18 years or older. It read down the exception to include only wives older than 18. The court’s finding was based on conflicts with POCSO as well as other laws and the fact that the classification violated the right to life of those between 15 and 18 years of age.
If the court recognised the problem with violation of right to life of the wife, there is absolutely no rationality in restricting the right to life of those between 15 and 18 years of age. The right to life in terms of this issue should undeniably be extended to all married women, regardless of their age. The deletion of Exception 2 under Section 375 of the Indian Penal Code is long overdue. This exception is archaic, inhumane and degrading in several ways. There is absolutely no positive or educated argument for why it shouldn’t be struck down.