“No means no” a famous line from the Bollywood movie Pink signifies the importance of consent in every relationship otherwise it is punishable by law, does it always punished by law in the case of rape yes but what about marital rape, India is one of the 36 countries that still haven’t criminalized marital rape . The term rape is defined in Section 375 of the Indian penal code but exception 2 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age thus protecting it from prosecution. In independent thought v. Union of India, Supreme Court criminalizes unwilling sexual contact with a wife between fifteen and eighteen years of age but is this all we need.
In 1860 when lord Macaulay drafted Indian Penal Code at that time married women are not considered as independent entity so she does not have enough rights to protect themselves or register complaints against their own husbands. IPC is drafted on the basis of Victorian patriarchal norms which did not recognize men and women as equals thus did not allow married women to own property, and merged the identities of husband and wife under the “Doctrine of Coverture.” Thus it violates Article 14 of the Indian constitution as it does not consider men and women equal and also discrimination between women and married women denied them equal protection of the law from rape.
The purpose of Section 375 is to protect the women and punish the guilty one who practices this inhuman activity but exempting married women from the same destroys the spirit of the section because the consequence of the act is the same on any woman whether married or unmarried. However married women find it difficult to escape from these situations so there should be special provisions for them but instead exception 2 exempted them from the category.
In recent years court has acknowledged the importance of consent and a right to abstain from sexual intercourse and to be free of unwanted sexual activity enshrined in these broader rights to life and personal liberty. According to the interpretation of Supreme court Article 21 includes the rights to health, privacy, dignity, safe living conditions, and safe environment, among others. In-State of Karnataka v. Krishnappa., the Supreme court said that sexual intercourse without consent is physical and sexual violence which is apart from being n inhuman act also is an unlawful intrusion of the right to privacy and sanctity of a female. . Later, in Suchita Srivastava v. Chandigarh Administration, Supreme Court held that right to make choice related to sexual activity comes under the scope of Article 21 of the constitution. . In Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court held that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations. “Thus forced sexual intercourse is a violation of Article 21 of Indian constitution.
In this modern era, women are as much success as men and retreated as a separate entity so it is high time when the legislature should widen the scope of Section 375 IPC and consider marital rape as a crime. So, when a woman says no, whether married or unmarried wouldn’t be forced into anything she doesn’t want.
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