Case Analysis Of Dilip Pandey v/s State of Chhattisgarh-2021
By Nemi Bhavsar
The marriage between the applicant and the complainant was solemnized back in 2017 where the applicant soon after, began harassing her on the demands of the dowry. In lieu of constant rejection, the complainant was compelled to indulge in unnatural sexual activities.
The compulsion since beyond her consent made her to approach the local police station and the applicant was arrested on the grounds of section 376, 377 and 498A of The Indian Penal Code (hereinafter referred to as IPC). The trial court had upheld the charges and a subsequent appeal was made to the High Court of Chhattisgarh for review.
Whether Section 375 of IPC which defines rape, includes marital rape and is applicable in the instant case?
Whether the applicant is punishable by law under Section 377 (carnal intercourse) and Section 498A of IPC (cruelty against women).
The prosecution contended that the applicant having defied the modesty of his own wife should be punished with Section 376 of IPC and upheld that consent before any sexual activity is an essential not to constitute the offence of rape and the applicant clearly seems to have violated the requirements of consent. The prosecution having laid down their reliance on the very infamous Supreme Court case of Independent Thought v. Union of India claimed that marital rape is a recognised crime by Supreme Court.
The prosecution demanded that the applicant should be punished under Section 377 for having indulged in unnatural sexual activities with his wife and under Section 498A for his repeated demand of dowry and his rudely and offensive behaviour against the complainant.
The difference pleaded that marital rape is still not recognised in India and is protected by Exception 2 under Section 375 of IPC.
The defence pleaded that carnal intercourse to induce momentary pleasure against the order of nature with any man, woman or animal is a prerequisite to constitute an offence under Section 377 which was absent in the instant case. Also held that the charges under Section 498 as erroneous, non-substantial and arbitrary, consequently demanding absolution from the above mentioned charges.
The court having placed its reliance on the 2018 Gujarat High Court judgement of Nimesh Bhai Bharat Bhai Desai vs State of Gujarat and thorough examination of section 375 of IPC which included the exception to under as follows:
"Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not a rape." held that any sexual act by a legally wedded husband (the wife not being under 15 years of age) is not a rape. The court denied to take the factor of consent into notice and held consent is immaterial to the present case since Exception 2 does not talk about consent at all, holding charges under Section 376 against the applicant as erroneous and illegal.
With respect to Section 498A, the court upheld the trial court's decision taking into account the witnesses produced before the court (legal mother and father of the complainant) holding the applicant guilty of Section 498A of IPC (women subjected to cruelty by husband or relatives of husband.)
With respect to Section 377, the court placed its reliance on the case Momina Begum v. Union of India and Ors. to hold that abusing intimate organs with anything other than establishing natural cohabitation would lead to carnal intercourse against the order of nature being established. The court came up with a reasonable decision holding that even a wife can file a suit against her husband under Section 377 of IPC and consent is immaterial to the cases involving this section. The court held the applicant guilty under Section 377 and upheld the trial court's verdict.
The case soon caught the attention of the legal luminaries who called it a "Missed Opportunity to Revolutionise Marital Rapes in India". The legal luminaries called it a flawed judgment holding Section 375 of IPC being wider than it seems where the court could have given it a strong precedential background. Curbed by the syllabi, would be analysing the aspects of Section 375 and if it is high time to consider marital rape as an offence under the Indian Jurisprudence.
India is the seventh largest and the second most populous country yet the rates at which the crimes are increasing in India is not just alarming but also embarrassing. Marital rape has become one of the chief concerns in the fields of women's rights where the victims are denied justice on grounds of an outdated law and Supreme Court refusing to set out a clear precedent with respect to these cases.
To quote FH Batacan:
"Her friends used to tell her it wasn't rape if the man was her husband. She didn't say anything, but inside, she seethed. She wanted to take a knife to their faces."
He common law principles had held a woman to be a chattel and that women happens to be an estate of her legally wedded husband. It was the same case where the Indian Supreme Court recognised that this notion and belief is outdated and needs some stringent transformations with respect to marital rapes in India.The only good that Supreme Court could have done to Exception 2 of Section 375 was to broaden the exception and make it under a punishable offence for any minor girl, as initially it was for a girl only fifteen years of age.
Marital Rapes and The Indian Constitution
"The Constitution is the basic document which is the guiding light for all other legislations in India." Article 13 the Indian Constitution talks about the consequences when a law goes against the Part 3 of the Indian Constitution. DTC v. DTC Majdoor Congress is a famous case where the supreme court applied the Doctrine of Severability to hold the provisions of the legislation in as much as to the conflict it created with the The Constitution as void. The above discussion proves that no provision of any subsidiary legislation is allowed to go against Part 3 of the Constitution. Let us not talk about how marital rape violate Article 21 of the constitution.
Article 21 or Right to Life is an all-encompassing right in lieu of the multiple residuary rights that the Supreme Court has put under it from time to time. "Right to Life includes the right to a dignified life free from the shackles of slavery and injustice." The said judgement broke free the shackles of common law principles holding woman, an estate of a man and held that every individual has a right to a dignified life.
Despite clear precedents and many recommendations neither the Central Government nor the Supreme Court is willing to take cognizance of the increasing number of marital rape cases in India. The Indian Supreme Court has time and again upheld that the Right to Life also encompasses right to live with human dignity yet the Exception 2 to Section 375 of India allows a husband to sexually exploit the interests of his wife without her consent, severely affecting the mental health of the woman and her physical relations with her husband and also undermining her right to life with human dignity.Marital Rapes are an exception to the existing rape laws which undermines the concept of consent under Indian laws. Given the large differences that various High Courts have ruled in regards to the matter, Indian Supreme court should take cognizance of the matter understanding the humiliation it is inducing to the Indian Jurisprudence through the inhuman nature of this exception. Marital Rapes are already a crime in 36 other jurisdictions few of them are as follows:-
USA- Marital or Spousal Rape is a crime in all the fifty states in USA. States like Maryland and Mississippi have rape laws against the husband even if they are mutually undergoing judicial separation. In states like Nevada and Oklahoma, cohabitation under the influence of drugs and narcotics without any pre-consent is also considered a rape.
The UK- The UK Sexual Offences Act, 2003 talks about rape where marriage is no defence to Section 1 which defines and penalises rapes. In R v. R, House of Lords affirmed to the possibility of rape against a man's own wife and no defence to marital rape was accepted in this case.