Marriage is not consent

It is time to discard the notion that a woman gives up her bodily autonomy by entering into marriage

Although marital rape has been criminalised in over a hundred countries, India remains one among the 30-odd countries yet to do so. According to UN Women, one out of every three women across the world is subject to physical or sexual violence by an intimate partner. The pandemic has further exposed the fault lines of gender parity, with the lockdown periods witnessing a rise in the incidence of domestic violence.

When the Indian Penal Code was written by the British rulers in the 19th century, women were not entitled to any rights independent of their husbands. Entrenched in Victorian values, the 161-year-old law treats women as subservient chattel, with one of the exceptions to the offence of rape provided under Section 375 of India’s criminal code stating that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape.”

By virtue of this exemption, a husband is granted immunity for sexual intercourse with his wife against her will. This outrageous flaw surviving in India’s rape law has escaped meaningful scrutiny since its inception in the 1860s. While the legal status of women began to change with the passage of statutes and reforms, the archaic colonial-era provision on marital rape stands even today.

In a recent milestone judgement that reignited the debate on marital rape, the Kerala High Court ruled that “a husband's licentious disposition disregarding the autonomy of the wife is marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty...In modern social jurisprudence, spouses in marriage are treated as equal partners, and husband cannot claim any superior right over wife, either with respect to her body or with reference to individual status. Treating wife's body as something owing to the husband and committing sexual act against her will is nothing but marital rape.”

Subsequently, the Chhattisgarh High Court took a step backward and observed that “Exception II of Section 375 of the IPC…makes it clear that sexual intercourse or sexual act by a man with his own wife, the wife not being under 18 years of age, is not rape. In this case, complainant is legally wedded wife, therefore, sexual intercourse or any sexual act with her by the husband would not constitute an offence of rape, even if it was by force or against her wish. Therefore, charge under Section 376 of the IPC framed against the husband is erroneous and illegal.”

Also read: Sexual act between husband and wife not rape even if by force or against her wish: Chhattisgarh HC

A court in Maharashtra also went strictly by the book and granted anticipatory bail to the applicant while observing that although it was the wife’s grievance that the applicant, her husband, had forcible sexual intercourse with her which left her paralysed, he cannot be said to have committed an “illegal thing,” simply because the applicant was her husband.

In 2013, the Justice J S Verma Committee recommended the removal of the exemption for marital rape, noting that a marital relationship between the perpetrator and victim cannot serve as a valid defence against the crimes of rape or sexual violation. The three-member panel, which was set up to suggest amendments to Indian criminal laws, also opined that the relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity, and the fact that the accused and victim are married or are in any other intimate relationship is not to be regarded as a mitigating factor justifying lower sentences for rape.

Regrettably, the parliamentary panel which deliberated on the amendments to Section 375 of the criminal code observed that outlawing marital rape could place the whole family under stress and result in more injustice, while failing to consider that marital rape itself fractures a marriage. The State should have no interest in conserving disintegrated and decaying familial relationships.

The Supreme Court and various High Courts have in recent years taken strides to acknowledge gender discrimination in situations where the law thwarted deviation from traditional sex roles. The continued existence of the marital rape exemption, however, freezes and further entrenches married women in the role of sexual objects aligned to their husbands' desires. India’s marital rape law nurtures a man's sexual entitlement to a woman within a contract of marriage and the contemporary justifications for the exception manifestly display an underlying compliance to the ideology of female servitude and inferiority. The exemption eliminates a married woman's bodily autonomy in one of the most intimate and private of all human interactions.

The modern rationales in support of the exception, though divergent in structure from their 1860s forerunners, upholds the same ideals of an androcentric society and are rooted in the treatment of women as chattel. Promoting and favouring reconciliation, preserving the institution of marriage, and extinguishing evidentiary barriers and deficiencies are some of the present-day recipes sustaining the ancient 19th century potion for women's subjugation.

A man's forceful sexual possession of his unwilling wife is an exercise of unchecked power. The law’s silent sanction for this exercise of power serves as a dangerous encouragement for the continued violent subjugation of women in society. Neither can marriage be a defence against rape nor can it imply a blanket irrevocable consent.

The time is ripe, if not long overripe, to discard the peculiar notion that women who enter into marital relationships with men impliedly consent to sexual intercourse, or that a wife who on one occasion consents to sexual intercourse is forever so bound. In any case, a rapist remains a rapist, irrespective of his relationship with the survivor.

(The writer is a Bengaluru-based lawyer)