Marital rape and the question of consent

Every law is open to abuse, but that cannot be grounds for not giving women legal remedy for the offence of marital rape

The Delhi High Court, which is hearing a clutch of petitions to criminalise marital rape, said last week that "too much emphasis" was being placed on the wife giving her consent for sex with her husband. Justice C Hari Shankar, part of the two-member bench hearing the case, said that Parliament had provided "some kind of rational basis" to justify the exception to Section 375 of the Indian Penal Code (IPC). The exception protects a husband from the offence of rape if he forces his wife to have sex with him unless she is a minor and below the age of 18.

"We are obfuscating this entire argument, this entire rationale, by focusing on consent, consent, consent," Justice Shankar said.

However, consent, or the lack of it, is central to the whole debate on whether or not a husband can be exempted from criminal prosecution if he rapes his wife. Rather than "obfuscating" the rationale for granting him immunity from the law against rape, it starkly and emphatically clarifies why any such "rationale" is flawed and unjust.

Read | 'It’s time to criminalise marital rape'

The question of consent is often a tricky one. It is especially so in the case of sex between two people who are in an intimate relationship, where the absence of consent may be nuanced, or may not be explicitly articulated. However, the point is that the mere fact of marriage cannot presume a spouse's everlasting consent to sexual intercourse. The consent may be revoked. And if sex without consent is defined as rape, as it is in the IPC and criminal jurisprudence the world over, a husband forcing his wife to have sex with him can hardly be regarded as a spot of harmless marital sport.

Rape is red in tooth and claw — an act of sexual aggression, whether inflicted by a husband or someone else. Besides, the rapist-husband usually commits the act again and again, over months and years. Rape within marriage is rape normalised, and the exception to IPC Section 375 props up and perpetuates that abhorrent normalisation.

The petitioners' argument in the ongoing case is that the exception to Section 375 is unconstitutional as it violates a married woman's fundamental right to life, which includes her right to bodily integrity and sexual autonomy. It also discriminates against her on the basis of her marital status and violates her fundamental right to equality by not providing her with the same redress that is available to other victims of rape.

Read | Can't immediately respond to marital rape: SC

The Justice JS Verma Commission, which was set up to amend and strengthen the country's laws against sexual violence after the horrific Nirbhaya rape of December 2012, had stated in its 2013 report: "The law ought to specify that marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation… The relationship between the accused and the complainant is not relevant to the enquiry into whether the complainant consented to the sexual activity, and the fact that the accused and the victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape."

Despite the Verma Commission's emphasis on the centrality of consent in sexual intercourse between intimate partners, and hence, the clear recommendation to do away with the exception to Section 375, successive governments have baulked at it. In an affidavit filed in 2016, the Centre said that criminalising marital rape would "destabilise the institution of marriage and become a tool for harassment of husbands." The subtext of that statement is, of course, patriarchy's dearly held notion that a man has absolute power over his wife, that marriage gives him the divine right to have sex with her whether she likes it or not, and, therefore, any move to punish him for raping his wife will spark some kind of social armageddon.

On Monday, the government couched its reluctance to criminalise marital rape in somewhat less anachronistic terms. It urged the Delhi High Court not just to examine the constitutional validity of the provision, but to take "a wider view of the matter" as it involved the "dignity of the woman" and "social and family issues". It sought time from the court for a "consultative process" and said it was considering the issue in a "holistic manner".

However, the so-called holistic approach to marital rape really implies the unwillingness to upset the apple cart of deep patriarchy. There is only one way to look at marital rape — it is committed against the woman's will and consent. The bonds of matrimony or the fact that it takes place within a family structure or any other social factor cannot airbrush it in any way.

Similarly, it is specious to argue that criminalising marital rape will lead to women abusing the law en masse to victimise their hapless husbands, or that it would be difficult to prove rape in the context of marriage. Every law is open to abuse, and every crime has to be proven. Neither can be grounds for not giving women the legal remedy for the offence of marital rape.

In the last few years, the Supreme Court has struck down several antiquated and egregious laws such as IPC Section 377, which criminalised gay sex, or the adultery law of Section 497, on the grounds that they were unconstitutional. Let us hope that the courts, in their wisdom, will admit the stark unconstitutionality of the exception to Section 375, and not let the pushback from the executive derail the move to strike it off the statute books.

(Shuma Raha is a journalist and author)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.