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  • LEGALITY : LEGALITY OF MARITAL RAPE

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LEGALITY : LEGALITY OF MARITAL RAPE

Courtesy/By: Shilpa Rani  |  26 Dec 2017     Views:1469

Recently Supreme Court has held in the case of Independent Thought v. Union of India that sexual intercourse with wife under eighteen years of age will amount to rape. According to the observation made by the Apex Court in this case, Exception 2 to Section 375 of the Indian Penal Code, 1860 to be meaningfully read as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years (instead of fifteen years as provided under Indian Penal Code, 1860) of age, is not rape”. Supreme Court has given various reasons like contravention of obligations imposed on India when it became signatory to international convention like Convention on the Rights of the Child (CRC), Convention for the Elimination of all forms of Discrimination against Women (CEDAW). Another reason Court has given was that it violates Article 14 and Article 21 of the Constitution. Court also said that, it is inconsistent with other laws like Protection of Child from Sexual Violence Act which provides that age of consent is eighteen. Court also highlighted the problems of child marriage from rights perspective and said that the “key concerns are denial of childhood and adolescence, curtailment of personal freedom, deprivation of opportunities to develop a full sense of selfhood and denial of psychosocial and emotional well-being reproductive health and educational opportunity along with consequences described earlier.”

The judgment was appreciated nation-wide for recognizing rights of child-bride however it left many questions unanswered. It is difficult to understand that if non-consensual sex violates the right of a wife under age of eighteen years, how come it does-not violate rights of adult married women. If we look into provision, Explanation 2 to Section 375 of Indian Penal Code 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”. Earlier one NGO named Sakshi has asked for deletion of this provision to which Law Commission answered that it “may amount to excessive interference with the marital relationship”. If we look into History when IPC was enacted, age provided under above provision was ten years. Now after this judgment it is eighteen years. By virtue of this this marital rape exemption, husband can have non-consensual sexual intercourse with wife above eighteen years, without being penalized under the IPC, only because she is married to him. The right of an adult woman to her bodily integrity and to decline to have sexual intercourse with her husband has been statutorily denied.

The petitioner in this recent case society working in the area of child rights and that is why court has dealt with rights of child-bride only. The issue of adult-bride has not been raised before this Court. Petitioner has argued that the minimum age of marriage is 18 years in the case of females and the relevant clause of Section 375 should reflect this changed attitude. Since marriage with a girl below 18 years is prohibited (though it is not void as a matter of personal law), sexual intercourse withher should also be prohibited. Court has accepted this and it was noted that non-consensual sexual intercourse by a husband with a child-bride “would amount to a violation of her human right to liberty or dignity embodied in international conventions accepted by India such as the Convention of the Rights of the Child and the Convention on the Elimination of all forms of Discrimination against Women”. Article 16(g) of the CEDAWalso obligates state parties “to ensure that women do not suffer discrimination within marriage, especially in the exercise of personal rights”.

The right to consent to sexual intercourse is inherent to a person’s bodily integrity and sexual autonomy and state should make laws for its protection. Now it is a matter of dispute that how these reasoning would not apply to an adult married women. The consent of child-bride does not matter because law has presumed that she is unable to give consent, now it is very ironical that it disregards her consent even when she is adult and capable of consent. Right to refusal to sexual intercourse cannot be denied just because she is married. It is very absurd at this point of time that IPC is destroying the right of a woman to her body, and at the same time it is also supporting the backward idea of treating a women subordinate to her husband and as his property. This exception is in conflict with other provision for example consent under this statute means“unequivocal voluntary agreement, or a communication that conveys willingness, to participate in a specific sexual act”, so there is no rational in presuming that consent to marriage implies consent to sexual intercourse.

This exceptional provision under IPC which allows a husband to have full control over the body of her adult wife and can have sexual intercourse even without her consent, is very inconsistent with other statutes as well. It is unconstitutional as well for men and women both are equal constitutionally under Article 14. A woman has fundamental right to life and liberty which includes rights over one’s own body and disregard to her consent to sexual intercourse amounts to violation of this right guaranteed under Article 21 of the Constitution. This provision is derogatory to the status of a woman in our society. Protection of Women from Domestic Violence Act defines domestic abuse which includes “causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse” and definition of sexual abuse includes “any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman”. Therefore sexual intercourse with wife without her consent immaterial of her age will fall under above category of domestic abuse.

While deciding the constitutionality of this exception in case of minor-wife, court has based its reasons on grounds which are applicable to adult-wife as well. Another issue with this provision is that it is implicitly provides for child marriage which is like a menace to society for obstructing the intellectual development of girl-bride and also lowers her participation in society. Getting back to legality of forced intercourse with adult-wife, apart from violating her basic human rights including right to live with dignity, forced sexual acts also lead to many problems like unwanted pregnancy, loss of reproductive choice, or the destruction of confidence and self-esteem irrespective of her age. Considering all this, this provision needs to be removed from IPC.

 


Courtesy/By: Shilpa Rani  |  26 Dec 2017     Views:1469

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Is The Criticism Of In-House Procedure Justified?...
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Mere Pendency Of Civil Case Between Complainant An...
20 May 2019     Views:714
Section 482 CrPC: HC Should Assign Reasons As To W...
20 May 2019     Views:1923
Delhi High Court Directs Government To Set Up 18 F...
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No New Appointments To Be Made From In-Service Can...
18 May 2019     Views:687
Only Advocates Can Plead And Argue On Behalf Of Li...
09 Apr 2019     Views:2238
Nations Must Make Gun Laws More Stricter...
04 Apr 2019     Views:2747
SC Designates 37 Lawyers As Senior Advocates...
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Adding Additional Accused: To Invoke Section 319 C...
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SC Sets Aside Life Ban Imposed On Cricketer Sreesa...
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P&H HC Directs Protection Of Honest Officers While...
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19 Mar 2019     Views:1353
Islamabad High Court Rejects Plea Against Release ...
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Even Poem Can Help Save A Death Convict From Gallo...
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Educated Woman Supposed To Be Fully Aware Of Conse...
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Jammu and Kashmir HC Upholds PM’s Employment Pac...
19 Mar 2019     Views:1045
Magistrate Shall Specify Whether Sentences Awarded...
23 Feb 2019     Views:1656
Mere Inability To Repay Loan Does Not Constitute C...
23 Feb 2019     Views:1935
Inability To Establish Motive In A Case Of Circums...
23 Feb 2019     Views:1759
Punjab & Haryana HC Issues Slew Of Directions To C...
23 Feb 2019     Views:2020
Court Has to Confine Itself To The Four Corners Of...
23 Feb 2019     Views:795
Long Pendency Amounts To A Special Reason For Impo...
23 Feb 2019     Views:818
Successive Applications For Recalling Witnesses Sh...
23 Feb 2019     Views:1808
Lieutenant General (Rtd) Cannot Be Tried In A Gene...
06 Feb 2019     Views:1529
Autonomy Of the Bar Cannot Be Taken Over By The Co...
05 Feb 2019     Views:2229
Casual Act Of Possession Over Property Does Not Co...
04 Feb 2019     Views:1426
No Authority Can Claim Privilege Not To Comply Wit...
04 Feb 2019     Views:1602
Death Sentence Only When The Alternative Option Is...
04 Feb 2019     Views:1821
SC Imposes Rs 5 Crore Penalty On A Medical College...
28 Jan 2019     Views:1111
A Judicial Officer Is Not An Ordinary Government S...
25 Jan 2019     Views:1282
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23 Jan 2019     Views:1382
Mere Allegations Of Harassment Without Proximate P...
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Legal Article Why Should They Speak Lies: Decease...
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22 Jan 2019     Views:750
NCW is a Lame Duck or Legal Guardian for women...
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Mutual Consent Divorce Procedure in Chennai Family...
21 Jan 2019     Views:3219
Quick Divorce in India...
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4 Important things to file Divorce in Chennai...
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How to get Divorce for Muslim Men ...
21 Jan 2019     Views:9388
Offences Under Section 307 IPC Can’t Be Quashed ...
17 Jan 2019     Views:2184
Suspicion, Howsoever Grave, Can’t Substitute Pro...
17 Jan 2019     Views:787
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03 Jan 2019     Views:1536
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03 Jan 2019     Views:1396
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20 Dec 2018     Views:1652
Executive Magistrate Cannot Direct Police To Regis...
20 Dec 2018     Views:2031
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19 Dec 2018     Views:1049
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12 Dec 2018     Views:1157
Why Lawless West UP Has No High Court Bench?...
11 Dec 2018     Views:1205
Bombay HC Quashes Government Resolution Making It ...
26 Nov 2018     Views:1449
SLP Against Death Sentence Shall Not Be Dismissed ...
26 Nov 2018     Views:1510
SC Allows Live-Streaming Of Public Proceedings In ...
26 Nov 2018     Views:1372
Sexual Offenders Registry For Law Enforcement Agen...
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Men Too Have Right Not To Be Defamed And Denounced...
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Courts Have To Adequately Consider Defence Of The ...
26 Nov 2018     Views:775
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SC Issues Directions On Examination Of Witnesses I...
26 Nov 2018     Views:1286
Aadhaar Held Mandatory For Government Subsidies An...
26 Nov 2018     Views:994
Legal Article Now Bar Council ID Card Is Valid Id...
01 Nov 2018     Views:1677
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01 Nov 2018     Views:1617
Devotion Cannot Be Subjected To Gender Discriminat...
23 Oct 2018     Views:2785
There Cannot Be Any Mechanical Denial Of Appointme...
23 Oct 2018     Views:1955
Rights Of Accused Far Outweigh That Of Victims, Ne...
23 Oct 2018     Views:950
SC Strikes Down 158 Year Old Adultery Law Under Se...
23 Oct 2018     Views:1578
Extra-Judicial Confession Of Accused Need Not In A...
23 Oct 2018     Views:1133
Leaders Of Outfits Calling For Mob Violence Liable...
23 Oct 2018     Views:745
Section 377 IPC Decriminalised Partially By Supre...
23 Oct 2018     Views:1247
New CJI Ranjan Gogoi Is Determined To Ensure Sweep...
23 Oct 2018     Views:732
Court Must Not Go Deep Into The Matter While Consi...
26 Sep 2018     Views:1524
Reputation Of An Individual Is An Insegregable Fac...
26 Sep 2018     Views:1949
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18 Sep 2018     Views:3082
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17 Sep 2018     Views:1709
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17 Sep 2018     Views:995
Uttarakhand HC Dismisses “Contempt Petition” A...
14 Sep 2018     Views:1103
SC Stresses On Need To Develop And Recognize ‘De...
08 Sep 2018     Views:1047
Mirchpur Dalit Killings: “Atrocities Against SCs...
08 Sep 2018     Views:1144
SC Upholds Pan India Reservation Rule in Delhi; Bu...
03 Sep 2018     Views:1301
NDPS Bail Conditions Discriminatory, Irrational An...
31 Aug 2018     Views:1921
People Without A Degree Performing Surgeries: Utta...
28 Aug 2018     Views:1009
Uttarakhand HC Issues Directions For Conserving ...
28 Aug 2018     Views:1595
12 Year Old Girl’s Rape And Murder: Constitute P...
28 Aug 2018     Views:1205
MP HC To Debar Members/Office Bearers Of Bar Counc...
22 Aug 2018     Views:960
Special Squad, Police Patrolling Every 24 Hours To...
20 Aug 2018     Views:1027
NRC Being Prepared Under Supreme Court’s Watch I...
20 Aug 2018     Views:1040
Victims Of Crime Can Seek Cancellation Of Bail: MP...
20 Aug 2018     Views:1196
Delhi HC Strikes Down Provisions In Law That Crimi...
13 Aug 2018     Views:1145
Delhi HC Quashes Govt Notification Revising Minimu...
09 Aug 2018     Views:1066
Poorest Of Poor Cannot Go To Private Hospitals: Ut...
07 Aug 2018     Views:1388
How Long Will Lawyers Of West UP Just Keep Strikin...
04 Aug 2018     Views:1388
Courts Must See That The Public Doesn’t Lose Con...
04 Aug 2018     Views:1102
UK Tier 1 Entrepreneur Visa: Overview from Experts...
31 Jul 2018     Views:972
Enact Law For Safety Of Soldiers Of Jammu And Kash...
23 Jul 2018     Views:1062
SC Advocates Creating A Special Law Against Lynchi...
23 Jul 2018     Views:2180
Matrimonial Discord Can’t Be Considered As Reaso...
23 Jul 2018     Views:1970
Uttarakhand HC Recommends Govt To Enact Legislatio...
23 Jul 2018     Views:2157
High Court Priests Cannot Refuse To Perform Religi...
23 Jul 2018     Views:1534
Uttarakhand High Court Passes String Of Directions...
23 Jul 2018     Views:897
SC Finally Decides Master Of Roster Case...
23 Jul 2018     Views:842
Stone Pelters And Terrorists Have No Right To Life...
23 Jul 2018     Views:1036
Remove Designations Like Police, HC, Journalist, A...
23 Jul 2018     Views:943
Why Centre is Providing Security For Separatists B...
23 Jul 2018     Views:1064
Farmer Suicide Due To Bankruptcy Or Indebtedness: ...
05 Jul 2018     Views:3096
Every Indian Should Salute Brave Soldier Aurangzeb...
05 Jul 2018     Views:1797
Uttarakhand HC Issues Directions To Curb Drug Pedd...
05 Jul 2018     Views:1666
Have A Functional National Law University Within 3...
05 Jul 2018     Views:1374
Establish Regional Bench Of AFT In The State Withi...
05 Jul 2018     Views:807
Cancel Licences of Drivers Using Cell Phones; Helm...
05 Jul 2018     Views:747
Uttarakhand High Court Puts Restrictions On Noise ...
05 Jul 2018     Views:770
Supreme Court To Look Into Validity Of Amended Law...
05 Jul 2018     Views:838
Mysterious Deaths, Rapes, Malnutrition, Unsanitary...
29 Jun 2018     Views:1214
No Politics Please Over Plan To Assassinate PM Mod...
11 Jun 2018     Views:1263
Free Mentally Ill Children And Formulate Policies ...
11 Jun 2018     Views:1464
Landmark Ruling By Uttarakhand HC On Solitary Conf...
07 Jun 2018     Views:1843
Right Of Adult Couple To Live Together Without Mar...
06 Jun 2018     Views:1397
Why BJP Will Be Wiped Out In West UP And UP?...
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Why UP Has Just One High Court Bench And West UP N...
05 Jun 2018     Views:991
Women Governed By Muslim Personal Law Can Invoke P...
04 Jun 2018     Views:840
Why Is BJP Not Creating More Benches In UP?...
01 Jun 2018     Views:841
Probation Period To Count For New Civil Servants B...
01 Jun 2018     Views:2242
SC Women Lawyers Association Seeks Chemical Castra...
01 Jun 2018     Views:805
SC Finally Steps In To Expedite POCSO Cases...
01 Jun 2018     Views:1512
UP Former CMs Can’t Stay In Govt Bungalows: SC...
01 Jun 2018     Views:768
Make BCCI A Public Body: Law Panel...
01 Jun 2018     Views:844
Self-Styled Godman Asaram Awarded Life Until Death...
01 Jun 2018     Views:875
Why Cases Withdrawn Against Stone Pelters In Kashm...
01 Jun 2018     Views:958
A High Court Bench For West UP In Meerut Is Impera...
01 Jun 2018     Views:1022
People Of Karnataka Should Worship Congress...
01 Jun 2018     Views:809
Delhi HC Upholds Life Term To Seven Policemen...
19 Mar 2018     Views:843
Finance Act-2018 And Customs Act-1962 (Amendments)...
28 Feb 2018     Views:883
Why No Death Or Life Term For Corruption?...
19 Feb 2018     Views:751
Will Electoral Bonds Usher In Transparency?...
19 Feb 2018     Views:751
How Long Will Lawyers Of West UP Keep Striking?...
19 Feb 2018     Views:823
Finance Act 2018 and Customs Act 1962...
18 Feb 2018     Views:1052
Why Has Stone Pelting Been Legalised In Kashmir?...
12 Feb 2018     Views:821
Shopian Firing: Major's Dad Moving SC For Quashing...
12 Feb 2018     Views:783
Soldiers Have Every Legal Right To Kill Stone Pelt...
12 Feb 2018     Views:1752
Attack On Lawyers: Delhi HC Issues Notice To Delhi...
10 Feb 2018     Views:835
Female Foeticide Must Be Punished Most Strictly...
10 Feb 2018     Views:784
Soldiers Have Every Legal Right To Act In Self Def...
10 Feb 2018     Views:747
New Consumer Protection Bill 2018 Will Entail More...
10 Feb 2018     Views:760
CJI Brings Out A Roster To Allot Cases...
10 Feb 2018     Views:1301
Five Year Jail Term For Lalu In Third Fodder Scam ...
10 Feb 2018     Views:841
SC Quashes All The 88 Mining Leases In Goa...
10 Feb 2018     Views:833
Prevention Of Money Laundering Act -2002 (PMLA-20...
07 Feb 2018     Views:738
Prevention Of Money Laundering Act-2002 Amended ...
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Prevention Of Money Laundering Act -2002 --U/S 45(...
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Prevention Of Money Laundering Act-2002 (P...
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13 Jan 2018     Views:752
Prevention Of Money Laundering Act-2002 PMLA...
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Right to Know...
05 Jan 2018     Views:1071
A STUDY OF CERTAIN DEDUCTIONS ON INCOME TAX RELATI...
29 Dec 2017     Views:1332
Enviornment protection is for saving universe...
28 Dec 2017     Views:789
RIGHT TO PRIVACY AND STATUS OF SECTION 377, IPC, 1...
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PROBLEMS WITHIN THE EXISTING POLICE SYSTEM...
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LEGALITY : LEGALITY OF MARITAL RAPE...
26 Dec 2017     Views:1469
RIGHT TO PRIVACY AND DIRECTION FOR MANDATORY AADHA...
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THE PARADOX OF PLEA BARGAINING...
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JOURNEY OF EVMs AMIDST CONTROVERSIES ...
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UIDAI suspends Airtel, Airtel Payments and Banks e...
26 Dec 2017     Views:1136
2G Scam : The 2G Scam and much more...
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Kerala teen surveillance case: Invasion of Privacy...
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Motherhood or Employment- the judicial perspective...
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