In a recent case, the Delhi Police arrested a man for allegedly engaging in “unlawful sexual intercourse” with his separated wife. Charges have been filed against him under section 376B, which penalises sexual intercourse with a separated wife without consent as well as under section 323 of the Indian Penal Code, which criminalises assault.
Judicial separation refers to the period where a husband and wife live separately but do not divorce, allowing for the possibility of a reconciliation.
This case highlights the fact that the law in India compartmentalises the criminality of rape based on the relationship of the victim to the rapist. The impact of such segregation is seen in the penalties attached :
- The penalty under section 376B is two to seven years of imprisonment.
- In other cases, the term is not less than seven years and extendable up to life imprisonment
So this implies that raping an estranged wife is a lower crime than that of raping a divorced one.
Law Implicitly Contains ‘Hierarchy’ of Rape
According to experts, the IPC seems to have three levels in the ‘hierarchy’ of rape and they’re all based on the relationship of the woman to the man.
- A woman who is not married to the perpetrator, lives-in with him or has divorced him is considered within the standard rape category.
- The rape of a separated wife has its own special category and falls lower on the hierarchy
- Finally, the rape of a woman who is the wife of the perpetrator but which is not considered as rape.
It must be noted that the law not only refuses recognises the last mentioned crime, but actively set asides the idea of marital rape via an exception. The law contains two exceptions :
- one that states that medical procedure or intervention won’t be counted as rape
- The second states, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
So in effect, the act of marriage is an act of signing off power of attorney of one’s sexual agency.
Women Considered As Property
A close look at India’s rape laws reveals that that such hierarchy is based on the concept of women as property – the punishment depends on how much ownership a man continues to have over his wife.
The issue of marital rape not being recognized in India is already under debate. The Delhi High Court is currently hearing a petition filed by RIT Foundation and the All India Democratic Women’s Association to criminalise marital rape.
However, the Centre has indicated that it is in favour of retaining the exception clause regarding marital rape to “protect the institution of marriage”.
According to activists, such a stance shows that “sanskar” is seen to be more important than the protection of women in India.
No Culture of Consent Possible
An attitude that views “a woman as property” cannot encourage a culture of consent in the country, according to experts.
The avowal of eradicating the “rape culture” by the legal and judicial systems of the country signifies little when the fundamental principle of ‘women as property’ acts as the base for the state’s laws to ‘protect’ women.
According to data from 2015 report of the National Crime Record Bureau (NCRB), in nearly 95 percent of all rape cases, the victim knows the perpetrator. But under the rape hierarchy present now, the maximum punishment is meted out in rapes cases where the perpetrator is a stranger.
Therefore the quantum of punishment as laid down in sections like the 376B need to reviewed as punishment for rape cannot be defined by the relationship between the victim and the perpetrator.
Just as a separated wife is not partially owned by her husband, the sexual agency and consent of a married woman must be given back to her .