Saturday, 4 June 2022

Exception of Marital Rape: Violative of Article 21 of the Constitution

 EXCEPTION OF MARITAL RAPE: VIOLATIVE OF ARTICLE 21 OF THE CONSTITUTION


Exception 2 of Section 375 of I.P.C. i.e. the exception of marital rape, seriously violates a host of

rights that have been interpreted from the expression ’right to life and personal liberty’ guaranteed

under Art. 21 of the Constitution.


1.2.1 Right to live with Human Dignity

Art. 21 of the Constitution has been attributed wider connotation by the Indian Judiciary and it has

been held that it encompasses rights to health, privacy, dignity, safe living conditions, and safe

environment, among others. 1


In numerous cases, 2 the Supreme Court has held that the act of rape violates an individual’s right to

life and human dignity protected under Art. 21. In Bodhisattwa Gautam v. Miss Subhra

Chakraborty, 3 the court had held that rape is not only a sexual offence under the B.P.C. but also a

hostile act which aims at humiliating the victim. It is thus an offence against not only the victim but

the entire society. In State of Punjab v. Gurmit Singh, 4 it was reiterated that “A rapist degrades

the very soul of the helpless female.”


Therefore, the exception of marital rape violates a woman’s right to live with human dignity. The

exception in question takes away a woman’s right to consent and compels her to engage in the act

of sexual intercourse. This goes against the very essence of Art. 21 and is hence, unconstitutional.


1.2.2 Right to Good Health

Supreme Court has several times taken the position that Right to good health is a part of Article 21. 5

The exception of marital rape violates this right, as in the process it not only causes physical but

also mental harm to the victim, which severely affect the psychology of the woman and causes

emotional damage. 6 Therefore, the exception is unconstitutional.


1.2.2 Right to Privacy


1 Francis Corallie Muin v. Union Territory of Delhi, AIR 1981 SC 802. Also see Maneka Gandhi v. UoI, AIR 1978 SC

597.

2 The Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988 ; State of Haryana v. Janak Singh, AIR 2013 SC

3246.

3 Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty, 1996 SCC (1) 490.

4 State of Punjab v. Gurmit Singh, 1996 AIR 1393.

5 CESC Ltd. v. Subhash Chandra, (1992) 1 SCC 441 ; Bandhua Mukti Morcha v. UoI, AIR 1984 SC 802 ; Regional

Director, ESI Corp. v. Francis De’ Costa,1993 Supp (4) SCC 100 ;  State of Punjab & Ors v. Mohinder Singh Chawla,

(1997) 2 SCC 83.

6 Bandhua Mukti Morcha v. UoI, AIR 1984 SC 802.


The constitution does not expressly guarantee right to privacy but in series of judgements, the

Supreme Court has interpreted Art. 21 as such that it encompasses right to privacy. In Justice K.S.

Puttuswamy v. Union of India, 7 the court held that right to privacy is a fundamental right under

Art. 21 of the Constitution and it includes right to privacy to make decisions pertaining to one’s

sexual nature in matters of intimate relations.


In Suchita Srivastava v. Chandigarh Administration, 8 the court reiterated that right to make

choices pertaining to one’s sexual action is protected under right to privacy, liberty and dignity

under Art. 21.

Any form of non-consensual sexual intercourse amounts to sexual violence and violates an

individual’s right to privacy. 9 In State of Maharashtra v. Madhkar Narayan, 10 the court had held

that every woman has right to sexual privacy which cannot be violated at anybody’s whim.


Furthermore, forceful sexual cohabitation is also violative of Fundamental Right of an individual as

right to abstain from sexual intercourse is a well recognised right. 11 No distinction between married

and unmarried woman has been done by this or any other ruling. Thus, right to abstain from sexual

intercourse, irrespective of marital status is a Fundamental Right under Art.21. Therefore, the

exception is unconstitutional.


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