Marital Rape: Married, Married But Separated, & Unmarried-Classifying Rape Victims Is Unconstitutional: Petitioners Submit Before Delhi HC [Read Written Submissions]

If slapping and anal rape in marriage is criminal why isn't rape? Pressing against provisions allowing “legal rape” of married women and the unconstitutional classification of rape victim as married, married but separated and unmarried, the RIT Foundation and The All India Democratic Women's Association (AIDWA) has submitted before the Delhi High Court that when sodomy, sexual assault, murder are not de-criminalised in marriage, there is no reason rape should be.Karuna Nundy, counsel for petitioners RIT Foundation and AIDWA (intervenor) said through her oral and written submissions before the Hon'ble Delhi High Court, that the fiction of legal marital rape created by Exception 2 of Section 375 of the Indian Penal Code, 1860 has caused millions of women to be legally raped. The government's own latest data shows 6 per cent of married women were sexually assaulted by their husbands.Relying on the Supreme Court's judgement in the Independent Thought case which criminalised the rape of child wives between 15 and 18, Ms. Nundy cited extensively aspects of the ratio which also apply to adult women. Relied upon also was the a nine judge bench in Justice (Retd) KS Puttuswamy vs Union of India (Privacy judgement), the petitioners said the court has recognised the value of physical integrity and sexual autonomy under Article 21.She stated that “even if one married woman suffers her constitutional rights being violated by legal rape, she must have the protection of the Constitution of India as she cited the observation of the apex court in the privacy judgement wherein it is stated that, “The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion”.40 times more women raped by husbandsThe petitioners have relied on a 2014 study conducted by Research Institute for Compassionate Economics which revealed that most incidents of sexual violence were committed by husbands of the survivors and the number of women who experienced sexual violence by husbands was forty times the number of women who experienced sexual violence by non-intimate perpetrators.The UN Women Global Database also reports that the proportion of women aged 18–74 experiencing intimate partner physical and/or sexual violence at least once in their lifetime is as high as 37%. Victorian patriarchies legalising marital rape in 21st centuryRape within marriage in the twenty first century, continues to be legalised by criminal laws of 1860.The petitioners go on to add in their written submission that, “The Exception to Section 375 was drafted on the basis of the Victorian patriarchies of 1860 that did not recognize men and women as equal. From 1950, the Indian Constitution provided key fundamental rights, to all citizens of India, irrespective of class, religion, race, sex and place of birth; further vide Article 13(1) it declared void, all provisions of laws existing as of 1950, found to be inconsistent with these inalienable fundamental rights of a citizen”.The irrational classification of rape victimsThe petitioners highlight the classification as under: a.Women suffering rape at the hands of a man who is not their husband, are protected by the criminal law under Section 375 and 376 IPC and are de-jure afforded the full protection of the present law. A woman who is married to a man who rapes her, cannot approach police or the judiciary and seek punishment under penal provisions for rape. Such act of sexual violation and assault on the woman is not only deemed legal as per section 375 exception 2, but also amounts to encouraging the rapist husband to continue to sexually violate and assault his wife at will, with the sanction of the law. A rape victim, de facto or de jure separated from her assailant husband, under section 376B IPC as inserted in 2013, may have her rapist sentenced to between 2 to 7 years upon conviction. The said offence is cognizable, only on a complaint by the victim, and bailable. Further, as per Section 198B CrPC courts are also barred from taking cognizance of a rape of a woman by her separated husband except upon prima facie satisfaction of the facts, leaving such a woman vulnerable to violent backlash in the interim.Stressing how Exception 2 to Section 375 of IPC provides for an explicit exemption for rape within a marriage while Section 376B IPC and Section 198B of the Criminal Procedure Code, 1973 provide for unequal treatment of a rape victim separated from her husband at the time of rape, the petitioners said, “In contemporary India the impugned provisions that legalise marital rape and treat the rape of separated women unequally, are fundamentally opposed to women’s constitutionally recognized basic rights of equality, right to life and dignity”.It said while the married women across...

Marital Rape: Married, Married But Separated, & Unmarried-Classifying Rape Victims Is Unconstitutional: Petitioners Submit Before Delhi HC [Read Written Submissions]

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