By: Harsh Sethi
INTRODUCTION
Marital rape is defined as the non-consensual sexual intercourse in a marital relationship with one’s own spouse. The act, often justified for reasons of the ‘implied consent of the spouse’, not only violates the sexual freedom of the wife but also undermines her dignity and self esteem. Nonetheless, marital rape remains extremely common in Indian households with more than two third married Indian women, aged 15 to 49, having been coerced to engage in sexual intercourse over the span of her marriage.
The second exception to Section 375 of the Indian Penal Code, 1861 states that sexual intercourse by a man with his wife, above 18 years of age, does not constitute rape. This exception finds its origins in the Victorian ‘Doctrine of Coverture’ which accorded a non- independent legal status to the woman. This has been accompanied by a rigidly patriarchal culture, with family as the most important social unit, which has ensured constant social acceptance for marital rape.
This social acceptance becomes worrisome even more so with the Central government arguing in a recent affidavit that the society is not ready for the criminalisation of marital rape. Similarly, arguments against criminalising marital rape have ranged from the misuse of such a law to former CJI J. Deepak Mishra claiming that ‘it will cause anarchy in Indian families’. On the other hand, it is argued that the non-criminalisation violates Articles 14 and 21 of the constitution by creating a classification based on marital status that does not have any nexus with the object of the law i.e. prevention of sexual assault to women. This, in turn, deprives the spouses of their fundamental right to health and dignity.
This paper argues that marital rape as an act needs to be criminalised in India and separate provisions on consent for marital rape be devised taking in consideration the peculiar dynamics of an Indian marriage.
THE SOCIETAL ACCEPTANCE OF MARITAL RAPE: REASONS AND CONSEQUENCES
Marital rape in India has proved to be a conscious process of the assertion of superiority of men over women. Indian husbands are usually allowed to have complete sexual control over their wives with the law simply echoing what the society has taken for granted. This may be understood in the form of the cultural constructions of gender in the society which empower the man to violate her wife through rape. Hence, the urban public space and religious interpretations among other aspects of popular culture have ensured the continuity of self-perpetuating actualisations of using the male genitalia to mark terror and subjugation.
The marital rape exception in law wrongly assumes the eternal consent of the wife to engage in sexual intercourse with her husband. This understanding of a marital relationship is, among other factors, driven by popular misconceptions about what sexual assault involves, where it happens and what it looks like. For these reasons, marital rape is often considered less serious than other forms of domestic violence, thus constantly jeopardising the dignity and privacy of the wife.
Further, the legislature as well as the judiciary has also been instrumental in upholding the rigidly patriarchal social structure that allows marital rape. For instance, the restoration of conjugal rights as a legal remedy in the Hindu Marriage Act, 1956 available to husbands evidences the social culture that reinforces the validity of marital rape. The judiciary has also, in Saroj Rani v. Sudarshan Kumar Chadha, upheld this right thus, reaffirming social perceptions of the wife as the husband’s personal chattel.
MARITAL RAPE AND THE INDIAN PENAL CODE
The second exception to Section 375 of the Indian Penal Code, 1861 allows husbands to engage in non-consensual sexual intercourse with his wife with no criminal repercussions. The exception thus, effectively builds an illusion of a mutual matrimonial consent for sexual intercourse. However, the immunity available to the husband is qualified by certain factors. For instance, the wife has to be above 18 years of age for the purposes of the exception. This was raised from the previous ‘fifteen years’ by the Supreme Court in the judgment in Independent Thought v. Union of India.
The exception has been subject to much academic discussion and justified through various means from a criminal law perspective. For instance, it has been argued that the wife has no independent legal rights distinct from her husband in matters of family law. However, it needs to be understood that marriage is a relationship between equals. The chastity or fidelity of the wife is not for the husband to own. Thus, the criminalisation of marital rape is required not for protecting the husband’s interests in the wife’s integrity but for securing her personal choice and freedom.
Another important argument advanced in the favour of marital rape is the theory of implied consent which argues that a married woman willingly submits her autonomy to her spouse in exchange for protection. However, this argument falls flat as there is no authority to suggest marriage implies sexual consent at all times, thus the theory being grossly inconsistent with the principles of sexual freedom and egalitarianism.
Notwithstanding these reasons, the Union government has consistently avoided efforts at criminalising marital rape. It is notable, however, that the legislature has also sought to tangentially address marital rape through the Domestic Violence Act, 2005. Although the act signals a shift in the state’s non-interventionist approach, its understanding of ‘sexual abuse’ is too broad to effectively clamp down on the act of marital rape. This is complimented by the state and judicial inaction to come to the aid of the victim in the form of relief and protection, thus not altering the status quo on marital rape.
REDEFINING THE DISCOURSE ON MARITAL RAPE: SUGGESTIONS AND SOLUTIONS
The women’s vows in a marital relationship are often looked at as her ongoing consent to meeting her husband’s sexual demands. This notion is, in turn, validated for reasons of the little to no proof of the lack of sexual consent in the private lives of the married couple. Further, consent as a concept in marital relationships across the world are heavily biased against women as it only seeks to define what is legal sex rather than consent to sexual participation. Thus, it is aptly clear that the notions of sexual intimacy in a marital relationship are vague and unclear, often at the disadvantage of the women. A redefined discourse on marital rape, however, can be achieved through following non-exhaustive list of solutions and recommendations.
Firstly, the second exception should be struck down and a comprehensive act on marital rape be enacted by the Parliament of India. This act should enlist all forms of sexual abuse in a marital relationship, from penetrative sexual intercourse to sexual violence. Further, the academic and non-academic discussion on the issue should transition from taking it for granted to declaring it as problematic as the efficacy of the law would remain suspect if not for attitudinal changes along with the legal ones.
Additionally, the act should enlist marital rape as a strict liability offence under the law. That is, the intention of the husband to violate her wife is immaterial and only the actual consent of the wife evidenced from her testimonies and the relevant circumstances be taken into account.
Secondly, the boundaries of sexual consent in marital relationships have often been blurred. Hence, it is important that a comprehensive definition of consent is used.
Accordingly, consent may not be inferred by words or conduct when force, threat of force, coercion or making use of coercive situation render the spouse’s consent to be involuntary. It may also not be inferred where the spouse is incapable of giving genuine consent or on the basis of any prior or subsequent sexual conduct of the spouse. Lastly, any silence or lack of resistance on the part of the spouse to any sexual activity may also not count as consent. It is to be noted that these suggestions ought to complement and not supplant the existing criminal provisions on consent under Section 90 of IPC.
Lastly, the Prevention of Domestic Violence Act, 2005 allows husbands to escape criminal repercussions. Thus, any violence of a sexual nature should also be incorporated in the separate act designed specifically for dealing with marital rape and criminalised accordingly. Further, the offender should be more strictly penalised if his acts involve any aggravated forms of sexual violence or sexual intercourse.
CONCLUSION
Marital rape in India is a legalised coercive physical invasion in the private sphere of a spouse. The non-criminalisation of marital rape not only denies her equal protection of law and full citizenship rights but also hurts the institution of marriage built on trust and intimacy. The second exception to Section 375 ensures that this socially legitimized practice finds acceptance in law, thus worsening the mental and physical prospects of spouses in India.
Marital rape should accordingly be criminalized and require the same mens rea standards as non-marital rape. The criminalization of marital rape will allow us to effectively deal with the social structure that preserves and protects the places of abuse and violation of women. Thus, it can be concluded that the deconstruction of the public and private spheres needs to go hand-in-hand with naming and documenting violence against women, in order to bring tangible change.
[Harsh is a third year law student at NLSIU, Bangalore and is interested in criminal and constitutional law.]