Thursday, 30 June 2022

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

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

Article 14

The exception of marital rape violates Art. 14 of the constitution which states that

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” 

The exception of marital rape discriminates against a married woman when it comes to protection from rape by her own husband. When B.P.C. was drafted, the opinion existed that a woman was chattel of her husband and did not have a separate legal entity. Consequently, she was deprived of many rights which are now guaranteed to her being an independent legal entity. The exception of marital rape which does not take into account the will of a married woman in case of sexual intercourse, can be seen to be based on this understanding i.e. a woman’s identity is not independent that of her husband. 

The exception creates two different classes of women, married and unmarried, and allows for victimisation of one class only on the basis of marital status, which protecting the unmarried women against the same act. In Budhan Choudhary v. State of Bihar, the Supreme Court had held that any classification under Art. 14 is subject to a test of reasonableness i.e. the objective that is sought to be achieved must have some rational nexus with the classification. 

In the instant case, the distinction between married and unmarried woman is unreasonable as there exists no rational nexus with the underlying objective of the provision i.e. is to protect women from inhumane act of rape. Thus, it does not satisfy the test of reasonableness and is violative of Art. 14

In a recent landmark judgement, the Supreme Court criminalised marital rape of woman between fifteen to eighteen years of age. This further creates sub-class within the class of married woman on the basis of their age. The mere fact that a woman is 18 years or above does not take away her right to consent and bodily integrity. As laid down in multiple cases, an act of rape will be an act of rape, it cannot be legislatively ignored on the basis of mere technicalities.

While referring to test of reasonableness, it laid down in the case of Ajay Hasia vs Khalid Mujib Sehravardi, that whenever a state action is arbitrary in nature, it is violative of Art.14 and needs to be struck down. The decision of the state to not give equal protection to married adult woman against rape cannot in any way be considered reasonable. 

The test of reasonableness clearly demonstrates that the existence of the exception despite the presence of legal loopholes is arbitrary and unreasonable. Therefore, the exception violates Art. 14 of the Constitution.

2.1.2Article 15

The exception of marital rape violates Art. 15(3) of the Constitution. This article provides that

Nothing in this article shall prevent the State from making any special provision for women and children.

Art. 15(3) exists as a general exception to rule of equality before law guaranteed by Art. 14 of the Constitution. It gives the authority to state to make special provisions for women and children. Non-criminalisation of rape of woman only on the basis of their marital status goes against their welfare.


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