Explicating ‘Consent’ Within Marriage - When Is The Right Time To Address The Issue Of Marital Rape In India
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Category: Criminal Law
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EXPLICATING ‘CONSENT’ WITHIN MARRIAGE: WHEN IS
THE RIGHT TIME TO ADDRESS THE ISSUE OF MARITAL RAPE IN INDIA?
(Prof.) Dr. Vinita Kacher, Faculty of Law, University of Lucknow, Lucknow, Uttar Pradesh Niharika Verma, Research Scholar, Faculty of Law, University of Lucknow, Lucknow, Uttar Pradesh
ABSTRACT
Marital rape is viewed as a less serious crime than stranger rape, as evidenced by the small amount of literature on the topic compared to stranger rape. The law minimizes marital rape, as evidenced by the fact that, in India, the rape of a wife who is over 15 years old is not considered a punishable offense according to Section 375 of the Indian Penal Code. This exemption is not accidental but has roots in the English legal system from a judgment delivered almost 300 years ago. The rationale behind this exemption is the notion of "Implied Irrevocable Consent," which means that once a woman gets married, she has given her consent. However, the issue of "consent" has always been controversial in identifying the offense of rape, including marital rape. This article aims to understand the complexities of "consent" within marriage and provide a synthesized examination of marital rape.
Keywords: Marital Rape, Consent in Marriage, Section 375 of IPC, Irrevocable Consent
INTRODUCTION
The exemption of spouses from rape laws, including in India, has been historically deemed nearly unfathomable for a husband to rape his wife. This exemption has its roots in the basic doctrine written by Lord Mathew Hale in the 17th century and was judicially recognized in the United States in 1857. The Hale doctrine states: “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract. ”1“ Females, in their own right, tend to conceive rape as a violation that occurs solely amidst unfamiliar individuals. This general perception reinforces the widely accepted cultural and legal notion that the act of sexual violation between matrimonial partners is a non-existent occurrence.
The fundamental principle, upon which the rejection of marital rape as akin to other forms of sexual violation rests, is the premise that it transpires within the sacrosanct precincts of the socially approved institution of marriage. It is commonly accepted that a woman gives her perpetual consent to engage in sexual intercourse by accepting a marriage proposal. This is where the underlying fallacy of human-devised social institutions is revealed. During the course of their matrimonial journey, the lawful couple will inevitably encounter various social, psychological, and emotional upheavals. “However, due to the acuteness of the lawmaker’s foresight during the framing of the laws related to rape, it was expected that the married woman will never object and will give up her most basic fundamental right at the altar of marriage.
”2 “According to the Webster's dictionary and the socially accepted definition of rape, any man can sexually violate a woman regardless of their relationship status. However, it is only the interpretation of criminal and judicial law that has sought to differentiate forced sexual acts perpetrated by husbands as rape. The underlying reasoning behind this legal argument stems from the expectation that wives are bound to engage in sexual activities with their husbands as part of the marital contract. This “compulsory nature of sexual relations” arrangement most of the time, works to the advantage of men as the “duty” of sex is forced because men in the Indian society get the resources, and money & to provide for the women/family in the house.
” The failure to address the issue of marital rape to date can be attributed to a general lack of awareness regarding women's empowerment, as well as to the abysmal literacy rates,
1 D. Finkelhor and K. Yllo, License to Rape
Sexual Abuse of wives (New York Free Press, 1987).
2Mark Whatley, For Better or Worse: The Case of Marital Rape, 8 Violence & Victims 29 (1993). particularly in nations like India. “The propagation of social norms which have been hegemonically dominating the female psyche for centuries has also been a prominent reason for women never treating marital rape as rape. ”3 Throughout history, women have been conditioned to believe that their duty as an ideal wife is to obey their husbands and fulfil their sexual desires. This belief has been perpetuated since the Manusmriti era, where the beating and sexual exploitation of wives were justified as a means of maintaining the family hierarchy. In S v. H, the case deals with “a husband who is charged with indecent assault after he tries attempting to rape his estranged wife and subsequently appeals against the resulting conviction for common assault.
”4 The Judge, hearing the case, opined about the submission made on behalf of the appellant and gave his remarks in the following words – “A husband cannot be convicted of raping his wife. That is said to be the law of the land. And if this is so... he can likewise not be guilty of an assault on his wife if he uses physical force to have sexual intercourse with her against her will. Such force is a part of rape or attempted rape. What is condoned for purpose of rape cannot be condemned for purpose of the lesser offense of assault. ”5 Thus, the judge prematurely concluded that the exemption of marital rape was an established aspect of the law without even hearing the case further. As a result, the appellant's argument was deemed unsound, which can have detrimental emotional, physical, and psychological effects on the female party involved.
Such one-sided arguments represent a prime example of preconceived notions working against the fundamental human rights of individuals. Consequently, the non-reporting of such cases becomes normalized, as the lack of formulated laws and inherent judicial biases act against the rights of women. MARITAL RAPE – UNFOLDED To fully comprehend why the second exception to rape must be deemed unconstitutional and abolished, it is crucial to delve into the historical roots of this predicament and the prevailing mindset of the individuals responsible for drafting the Indian Penal Code. The earliest reference to the issue of marital rape was made in 1736 by Sir Mather Hale: “The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial 3G. V. Akshaya & M. Kannappan, A Study on Marital Rape in the Indian Legal Scenario, available at https://www.
acadpubl. eu/hub/2018-119-17/1/94. pdf (last visited Jan. 1, 2024). 4Issues & Challenges Related to Marital Rape in India, International Journal of Humanities and Social Science Invention (IJHSSI), available at https://ijhssi. org/papers/vol7(4)/Version-3/I0704035869. pdf (last visited Jan. 2, 2024). 5Id. At 60. consent, and contract the wife hath given herself up in this kind unto her husband which she cannot retract. ”6 Lord Hale's assertion that a woman loses her right over her person upon marriage essentially reduces her to a subservient chattel of her husband, devoid of any agency or autonomy. While Lord Hale did not provide any justification or legal basis for this statement, it was nonetheless frequently cited in various cases to absolve men from being prosecuted for committing marital rape. However, with the passage of time, this proposition has undergone a significant shift. In
1794 this theory was partially agreed with by ecclesiastical courts in case of Popkin v. Popkin7
where it was held that “the husband has a right to the person of his wife. ”8 However, an important qualification was added to this right. This right could be exercised only as long as health is not endangered. “This case, also however, effectively recognized women as property/ chattel of men. One can see that there was some degree of change as the qualification took into consideration women’s health. ”9 In 1888 in R v. Clarence “the judgment held that while Lord Hale has great authority on this subject, he has not provided any legal reasoning for his proposition. Hence, it could be possible for a wife to lawfully refuse to have intercourse with her husband and if he tries to impose it through violence, he may be guilty of crime. ”10 In R v.
Clarke it was held that “if a judicial order has been passed allowing the wife to no longer cohabit with her husband and if the husband then attempts to forcefully have sexual intercourse with her, then it would constitute as rape. ”11 However, this was effectively overruled in Reg v. Miller where it was held that “Lord Hale’s proposition was correct and that only when the husband has forcefully had sexual relations with his wife when a petition for divorce by wife had reached the stage of nisi would the act amount to rape. ”12In Reg v. Steele it was held “that if the wife and husband are living apart, then there no longer exists any implied consent to sexual intercourse by the wife. ”13 6M. Hale, Historia Placitorum Coronae 1736 (Abingdon, Oxon: Professional Books, 1987). 7Popkin v. Popkin, 1 Hagg. Ecc. 765 (1794).
8 Id at 19.
9Id at 20 10R v Clarence, 22 Q.B. 23 (1889). 11R. v. Clarke, 2014 SCC 28, [2014] 1 S.C.R. 612. 12 Teacher, Law, R v Miller - 1954, Nov. 2013, available at https://www.lawteacher.net/cases/r-v-miller- 1954.php?vref=1 (last visited Jan. 2, 2024). 13R v Steele (1976) 65 Cr App R 22.
It was only in R v. R the house of the lords unanimously decided that “marriage would no longer be a valid defence for a husband to rape his wife. The defence of the husband that under Section 1(1) of the Sexual Offences Act, 1976 that his act would amount to rape only if it was ‘unlawful’, that is outside the bonds of marriage was rejected and the term unlawful was held to be surplus age. ”14In this way, the concept of marital rape emerged in England’s common law system. : Indeed, the legal proposition surrounding marital rape in 1860, when the IPC was drafted, vastly differs from the current legal position. Thus, it is crucial for the courts and legislature to scrutinize the second exception to Section 375 IPC. This provision must be viewed in light of the contemporary societal norms, human rights, and the constitutional guarantees of equality and dignity.
The interpretation of the exception should be based on the evolving legal landscape, which now recognizes that a woman has absolute autonomy over her body, regardless of her marital status. Hence, the second exception to Section 375 IPC must be deemed unconstitutional and repealed, as it violates the fundamental rights of women and perpetuates gender discrimination. CONCEPTUALIZATION OF CONSENT Theory as well, and the absence of such recognition in law perpetuates the patriarchal notion that women are subjugated beings without agency over their own bodies. Thus, it is imperative that the law recognize the autonomy and agency of women in all spheres of their lives, including the marital relationship, and hold perpetrators of marital rape accountable for their actions.
This will not only bring justice to the victims of marital rape but will also serve as a deterrent for such heinous crimes. However, this assumption is flawed as it fails to consider the power dynamics within a marriage and the societal pressures that may prevent women from expressing their true desires. It is essential that women's agency and autonomy are recognized and respected in all aspects of their lives, including their sexual relationships within marriage. The legal system must reflect this recognition and provide protection to women who are victims of marital rape. “Women’s existence has never had an independent identity, and thus decisions concerning women have always been made by men in her life. If a woman uses explicit nonconsent, it is regarded as irrelevant or minor resistance that can be converted or reinterpreted as consent.
The portrayal of the leading ladies in Hindi Cinema over the years has also looked 14(1991) 3 W. L. R. 767. at how an explicit rejection of consent by the lady is still taken to be a green signal to the leading man to continue his pursuit of winning over the lady. ”15 It would be fallacious to assume that granting women's rights in various ostensibly progressive countries would automatically resolve the issue of consent. The early iterations of consent theories in the seventeenth century were clear in their emphasis on individual autonomy within the context of male-female relationships. Such theories emphasized that human beings, regardless of their gender, are born free and equal, thereby elevating the significance of mutual consent.
In light of this premise, a crucial query emerges: can one individual impose their will upon another, given that all humans are naturally endowed with freedom? “However, as was justified by Hobbes in his conception of the “state of nature”, humans have to come together and sacrifice some of their basic freedom for peaceful co-existence in society. If we don’t allow that, society will fall into chaos, and this will be detrimental to the existence of civilizations in general. Thus, the existence of some well-defined authority is necessary for basic lawfulness in society. ”16 The concept of consent theory is rooted in the notion that any authority exercised over an individual must be supported by explicit consent in order to preserve the citizen's autonomy and individuality.
This theory highlights the importance of consent willingly granted by all members of a society as part of their various social interactions, without any external influence or coercion. This approach is essential to ensure that the individual's freedom and selfdetermination are upheld, and that they are not subject to arbitrary control by external forces. Therefore, consent theory emphasizes the significance of consent in building a just and equitable society, where the dignity and autonomy of every citizen are respected and protected. In such cases, the notion of consent becomes blurry and difficult to establish with certainty. The concept of consent cannot simply be reduced to a mere formality of words, gestures or actions, but rather requires a deeper and more nuanced understanding of the power dynamics at play in the given situation.
It is necessary to acknowledge that women have historically been subjected to various forms of coercion and manipulation, which often makes it difficult for them to express their true desires and make autonomous decisions. Therefore, a more comprehensive understanding of consent is necessary, which goes beyond just the legal
15 Supra Note 3.
16J. Locke, Two Treatises of Government (Memphis, TN: General Books, 2012). definition, and takes into account the broader socio-cultural context in which such acts take place. Thus, since this distinction is exceedingly difficult to justify, most of the legal debates right since the start of the 19th century have focused on the cases where intercourse is conducted, and consent is achieved by fraud. It is important to note that the issue of consent is complex and multifaceted, and there may be situations where it is difficult to prove whether consent was freely given or obtained through coercion, deception, or manipulation. The law needs to recognize the nuances of consent and take into account the power dynamics in different relationships, including marital relationships.
Clarity is needed on the definitions of force and threat, and laws need to be updated to ensure that they are in line with the current understanding of consent and sexual autonomy. ” According to the Indian legal regime, consent cannot be proven if there is absence of injury. In the case of Tukaram vs St. of Maharastra, the apex court revised the decision of the Bombay high court and held “the accused not guilty. One of the reasons being under section 375 IPC, the fear of death or hurt can only vitiate consent for sexual intercourse. Without any recording, it will be considered habituated to sexual intercourse. ”17 Another case which also highlighted the vulnerability of females was the St of Maharashtra vs Madhukar Narayan Mardikar, “where it was postulated that a prostitute too has a ―right to privacy.
The court made it clear that “even a woman of ―easy virtueǁ is entitled to privacy and no one can invade her privacy as and when he likes. The women working in brothels too are equally entitled to protection of the law. Thus, extending it further, even women too, have their rights intact, even after marriage and can claim protection of their rights based on the above-mentioned arguments. ”18 Indeed, the issue of consent in intimate relationships is complex and requires a nuanced understanding of power dynamics and gender roles. It is not enough to simply rely on the traditional notion of consent where the man initiates and the woman consents. A truly egalitarian relationship must be based on mutual respect and consideration for each other's autonomy and rights. It is essential to recognize that consent is an ongoing process that requires active communication and respect for boundaries.
CONSTITUTIONAL VALIDITY OF MARITAL RAPE There exists a lucid comprehension of the historical context in which the second exception to 17Tukaram vs St. of Maharastra(1979)2 SCC 143:1979 SCC(Cri)381 18St of Maharashtra vs Madhukar Narayan Mardikar(1991) I SCC 57: 1991 SCC(Cri)I Section 375 IPC was formulated, and the developmental trajectory of marital rape within the common law framework of England. However, the pressing matter at hand necessitates a thorough investigation into whether this section aligns with the tenets of the Constitution of India, a text of paramount significance that embodies the essence and ethos of the nation. It is noteworthy that every law in existence in India is beholden to the dictates of the Constitution, regardless of whether it was enacted prior to the Constitution's inception.
This part attempts to illustrate how the second exception of Section 375 IPC is not in consonance with Article 14 and Article 21 of the Constitution of India, and is therefore ultra vires and must be struck down by the judiciary. “Article 14 guarantees a right to equality to every person and guarantees that every person will be treated equally before law. ”19 This however must not be misconstrued to mean that the same laws must apply to everyone. “In the case of State of West Bengal v. Anwar Ali Sarkar & Ors”20 the court has expounded the true meaning of Article 14. In the context of constitutional law, the court has elucidated on “the interpretation of Article 14, affirming that not all individuals are naturally, socially or by their circumstances, equal, and that different classes of persons have varying needs that may necessitate separate treatment.
Consequently, the clause ensuring equal protection of the law is deemed to prevent discrimination among equals only, rather than divesting the State of its authority to categorize individuals for the purposes of enacting legislation. ”21 The court observed that while all human beings are not inherently equal in every aspect, and different classes may require different treatment, Article 14 of the Constitution only prohibits discrimination among equals, rather than taking away the state's power to classify individuals for legislative purposes.
However, the court also emphasized that any such classification must not be arbitrary in nature, and set forth two conditions for its validity: firstly, that the classification must be based on an intelligible differentia that distinguishes those grouped together from others, and secondly, that the differentia must bear a rational relation to the objective sought to be achieved by the legislation. It is now apparent that the second exception to Section 375 of the Indian Penal Code (IPC) results in a division between married women and unmarried women, as it distinguishes the same act as not being rape if it is committed against a married woman, while it is considered
19 G.N. Joshi, The Constitution of India (Delhi
Macmillan India, 1983).
20AIR 1952 Cal 150. 21Id at 96. rape if committed against an unmarried woman. Moreover, this classification does not end here as this exception clause applies solely to married women who are above the age of 15 years. However, this no longer exists as in the case of Independent Thoughts v. Union of India, the court held that if a husband forcefully has sexual intercourse with his wife who is aged below
18 then it would amount to rape. “The court held that the exception clause being limited only
to married girls below 15 was unconstitutional and was not in consonance with Article 14, 15 and 21 of the Constitution. ”22 There is still an apparent distinction between married and unmarried women. “Upon analyzing Hale's proposition, it becomes evident that marital rape was not deemed as rape since in the past, married women were regarded as men's chattel. This created a substantial distinction between married and unmarried women, thereby validating the classification. Nevertheless, in recent times, it has been established that men and women possess equal status within marriage. This notion was explicitly articulated in the Justice Verma Committee Report, which was formulated after the Nirbhaya incident. ”23Therefore, “there exists no “intelligible differentia” in the classification as required by the State of West Bengal v. Anwar Ali Sarkar & Ors case.
With respect to the second condition it must be noted that the objective of IPC is to create a comprehensive penal code. “This classification of married and unmarried women in no way aids to the objective of the IPC. Therefore, this classification is arbitrary and irrational and is violative of Article 14. ”24 The exception in Section 375 of the IPC egregiously violates the inherent right of married women to live with dignity. The notion that a woman can be deemed to lead a life of dignity despite being forced to engage in sexual activity with her spouse is untenable. Marital rape unequivocally impinges on a woman's right to privacy and personal autonomy, as it coerces her into engaging in sexual activity against her will.
It is imperative to acknowledge that every woman, whether married or not, is entitled to safeguard her bodily autonomy and privacy, and that her marital status does not erode her status as a legal entity with fundamental rights. The said exception is thus a clear violation of the constitutional guarantees enshrined in Articles 14 and 21, and must be declared unconstitutional by the judiciary. 22Independent Thoughts v. Union of India, (2017) 10 SCC 800. 23S. R. Mohapatra, J. Baruah & C. R. Gogoi, Women, Law and Society (New Delhi, India: Bharti Publications, 2021). 24Supra Note
10 CONCLUSION
This paper was a devious attempt to accentuate the evils of society in the form of marital rape and how precociously it has been given the legal and cultural sanctity. “The conception that marital rape is not real rape not only has negated the sufferings of married women but also has become a reason for their sufferings. This statement highlights an important aspect of the issue of marital rape. The notion that marital rape is not "real rape" has contributed to the cultural and legal acceptance of this form of violence against women. This acceptance has led to the suffering of countless women who have been victims of this crime. The statement also draws attention to the fact that marital rape can have more severe consequences than stranger rape, as it involves a violation of trust and intimacy within a relationship.
Furthermore, the statement asserts that the cultural and legal acceptance of marital rape undermines the civil identity and rights of women in society. It is important to challenge this notion and recognize marital rape as a serious crime that violates women's human rights. The argument presented in this paper is that the marital rape exemption in Section 375 of the Indian Penal Code is unconstitutional and violative of women's fundamental rights to live with human dignity and privacy, enshrined under Article 21 of the Constitution of India. The paper suggests that the exemption reiterates the Victorian principle of women as property and perpetuates the notion that women are nothing more than objects meant to satisfy their husbands.
It also argues that criminalizing marital rape can be considered progressive legislation and will go a long way in changing the patriarchal mindset of society. To address concerns of the overburdened judiciary and potential misuse of the law, the paper proposes the establishment of separate courts for speedy delivery of justice and high penalties for false cases. The paper concludes that striking down the marital rape exemption and criminalizing marital rape will empower women and promote equality in various rights and duties that have empowered women over the last few decades. The non-recognition of marital rape as a crime is not only a hindrance to women's rights movements but also undermines the struggle of millions of women fighting for their equal place in society.