IMPLICATION OF RIGHT TO PRIVACY ON MARITAL RAPE AND RESTITUTION OF CONJURAL RIGHTS

Rape is rape, why does our penal code still treat ‘she’s my wife’ as a defense?”

Marital rape is the sexual intercourse done forcefully, without the consent of spouse. Victim of rape is not stranger but the married partner of the accused person. It is kind of chauvinistic attitude and also violation of the human rights for women but in Indian society the marital rape is hidden behind the iron curtain of marriage and lays adverse effect on the victim physically and mentally.

Paper discusses the legal perspective of marital rape, in India marital rape exists de facto but not de jure, while in other countries it has been criminalized either by legislature or judiciary but in India, state protects the accused by the ancient law i.e. IPC section 375 brought in year 1860 this is the main reason why husbands use it as license to torture and commit rape on women.

But currently it is hotly debated topic as after judgment given by 9 judge bench of the Supreme Court on right to privacy which includes value of physical integrity, sexual autonomy and reproductive choice.

This descriptive research paper emphasis on the consequences of marital rape and divides its study on region wise statically data in the Indian context i.e. north, south, east and west zone. It also stresses upon the comparative study with the Indian law to other countries.

At last, paper stresses on the derivation of relationship that can be concluded from the historical judgment of the right to privacy in relation with the perpetrator problem of marital rape and suggests certain legal reforms essential to achieve desired objectives.

INTRODUCTION

The word ‘rape’ is derived from the Latin term ‘rapio’, which means to seize. Thus, it literally means a forcible seizure and that is the essential characteristic feature of the offence. In common parlance, it means intercourse with a woman without her consent by force, fear or fraud. It is criminal offence under section 375 of Indian penal code for which minimum punishment is seven years and it can be extended to life imprisonment.

It is non-bailable and cognizable offence.

However, sexual offences including rape are defined under sections 375, 376, 376A, 376B, 376C, 376D and 376E OF IPC[1].

MARITAL RAPE

Marital rape is the sexual intercourse done forcefully, without the consent of spouse. Victim of rape is not stranger but the married partner of the accused person. It is kind of domestic violence and also rigorously violation of the human rights for women but in Indian society the marital rape is hidden behind the iron curtain of marriage which lays adverse affect physically and mentally to the victim.

CASE LAW OF MARITAL RAPE IN ALWAR[2], 2016

In a shocking incident, a 30-year-old woman was allegedly gang raped by her husband and his two brothers who tattooed expletives on her forehead and hand after her family could not fulfill their dowry demand in Alwar district, police said Monday.

The victim was married to Jagannath in Reni village. She alleged that since her marriage in January last year, her husband and in-laws used to beat her up and demand dowry of Rs 51,000, they said.

“Her husband and brothers-in-law allegedly raped her and tattooed profanities on her forehead which her parents later made an attempt to get removed,” a police official said.

She has been living with her parents since then, Mahila police station SHO Abdul Wahid said, adding the woman has still marks on her forehead and hand.

An FIR has been registered under sections of 498-A (Protection of Women Against Domestic Violence Act), 376 (punishment for rape) and 406 (punishment for criminal breach of trust) of IPC and an investigation in the case has been initiated,

The police are yet to make any arrests.

STATICSICAL DATA OF NATIONAL FAMILY HEALTH SURVEY ON SEXUAL OFFENCES AGAINST MARRIED WOMEN[3]

According to the National Family Health Survey from 2005-06 cited in a Huffington Post article published in August 2017, 6.6% of women said that they had experienced sexual violence at the hands of their husbands. That’s 66 out of 1,000 women. On the other hand, 0.16% of women – or 1.6 out of every 1,000 women – experienced sexual violence by perpetrators who are not their husbands.

If we analyze the situation of women in violation of conjural rights and marital rape in India by dividing into four blocks- northern, western, eastern and southern block then by looking at data one can come to the point there is no liberal behavior towards women due to such weak law and the patriarchal mindset of the people and in most of the cases complaint are not registered due to lack of awareness and self dependence of the women and due to this, men and his family members  consider them merely a household thing which is meant to be served for them whole life and being exploited by their own husbands who don’t act less than rapist but the sad part about our law is that despite of the  victims are visible but the guilty are not punished even after their recognizable image in the society.

So we can sum up this point that it is not only the burden on judiciary to implement the laws regarding marital rape but it’s more important to make a change on the part of society whose mindset has to be changed because we all know that members of judiciary are the people among our society and has same mindsets. So, to change people’s thinking perspective they need to be aware about gender sensitiveness and the major concerns regarding women faced by them in their own houses.

PUNISHABLE SEXUAL ACTIONS BY HUSBAND IN IPC[4]

Under Indian Penal Code 376B the rape is considered as punishable offence – “whoever has sexual intercourse with his own wife, who is living separately whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine”.

Explanation

1). in this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375.

2). Criminal law (amendment) act, 2013[5].

So, forceful sexual actions made by husband to his wife under Indian Penal Code section 376E are punishable offence but marital rape is still considered as a private matter in courts and is not heard and if we discuss about more worst cases then the sympathy are given to the wife on humanitarian grounds but no legal action is taken against the husband or rapist.

SCENARIO UNTIL DATE REGARDING SEXUAL OFFENCES AND MARITAL RAPE AGAINST WIVES

Marital rape may be considered as an offence under the section 498A of INDIAN PENAL CODE[6], which deals with subjecting cruelty to his wife but there is no particular law regarding this offence in India not defined in any statute or law and due to this weak and flexible law husbands use as it as license to commit rape with their wives.

Even the executives and legislatives are not showing interests in bringing out the strong bill against the marital rape so that it can be discussed in the parliament. Rather than, they gave their statement on the behalf of the central government in the Delhi high court that- “criminalizing marital rape may destabilize the institution of marriage and would become an easy tool for harassing husbands”. But if we see the reality it is becoming worsening day by day as women are harassed and tortured in the absence of harsh law dealing with marital rape.

We should understand that if rape is considered as a grieve punishable non- bailable offence then why we can’t criminalize marital rape?

It is totally upon the discretion on the hands of legislature to make law and to criminalize marital rape but in present circumstances we can just challenge marital rape in court of law by the help of recent judgment on the right to privacy.

JUDGMENT ON THE RIGHT TO PRIVACY, 2017 [7]

In a historic decision, a nine-judge bench of the Supreme Court held that privacy is a fundamental right and that it is an integral part of right to life and personal liberty under Article 21 of the Constitution, and as part of freedoms guaranteed under Part III of the Constitution.

The six opinions in the judgment expand the ambit of privacy from a narrow definition to look at individual dignity, bodily integrity and an individual’s right to privacy in the public and the private sphere. This means that the comprehensive 547-page judgment will have far reaching implications on Aadhaar, Section 377, data protection – and marital rape.

It can be analyzed that marital rape can be challenged on some technical grounds of law and the latest judgment delivered on The Right to Privacy à

Delhi High Court commented on marital rape which worked as a bolster by nine – judge bench of the Supreme Court stating that citizens unambiguously have the right to privacy w.r.t the reference case of Roe vs. Wade[8].

In the US, the Roe vs. Wade judgment that had found that a woman had the right to bodily integrity was founded on the right to privacy. It is, of course, subject to reasonable restrictions.

On delivering the judgment on the right to privacy regarding personal autonomy, sexual integrity and reproductive choice one of the judges Justice Chandrachud commented that –:

“Patriarchal notions still prevail in several societies including our own and are used as a shield to violate core constitutional rights of women based on gender and autonomy. As a result, gender violence if often treated as a matter of “family honour” resulting in the victim of violence suffering twice over – the physical and mental trauma of her dignity being violated and perception that it has caused an affront to “honour”. Privacy must not be utilized as a cover to conceal and assert patriarchal mindsets.

Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of the individual to control vital aspects of his or her own life. Personal choices governing a way of life are intrinsic to privacy.

While the legitimate expectation of privacy may vary from the intimate zone to the private zone from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.

Privacy is the constitutional core of human dignity. Privacy has a both a normative and descriptive functions. At a normative level, privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded”.

SCOPE OF CHALLENGING MARITAL RAPE AFTER JUDGMENT OF RIGHT TO PRIVACY, 2017

According to the latest judgment delivered by nine judge bench of the Supreme Court of India states that every person has right to protect its personal autonomy, sexual integrity and reproductive choices and if any other person violates them then it will be considered as violation of fundamental rights under right to life and personal liberty and will be considered as a punishable offence to safeguard citizen’s fundamental rights guaranteed by the Indian constitution. 

If we analyze the marital rape which is made in action by husbands without the consent of their wives can be considered as a violation of The Right to Privacy on the grounds of personal autonomy, sexual integrity and reproductive choices and victim can get support on the basis of violation of their fundamental rights and if taken these grounds seriously definitely these can be entertained in the court of law and maybe we can extract some remarkable judgment in the direction of criminalizing marital rape and protection of conjural rights.

· {498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—

(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.}

·Under Indian Penal Code 376B it can also be challenged.

CONCLUSION

So, scope of challenging marital rape in the court of law is widened after the implication of the Right To Privacy but by analyzing whole descriptive study on marital rape and restitution of conjural rights we can come out on the point that present laws are not enough to fight the socio-web of the India to protect the women and human rights. However, after the historical judgment of the Right to Privacy we can now also challenge it as a violation of fundamental right under right to life and liberty guaranteed under the Constitution of India and is a kick start in direction to criminalize the marital rape in India.