Publicise the private

Marital rape is a topic with too many questions and few answers. To simply define what marital rape is, it is sexual intercourse by a married couple without either individual’s consent. The process of rape can be varied, from penile to external objects. In whatever way it is done, it is non-consensual sexual intercourse or spousal rape or marital rape. So, the most important word that demarcates a boundary between rape and non-rape is the word “consent”.

Now, behind closed doors, it is very difficult to prove whether consent was procured or not. In open court, publicising the process becomes a murky debate between consent, non-consent and implied consent. Hence, it would be interesting to understand the legal connotation of the word ‘consent’.

Consent, in Section 375 IPC, has been explained as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: provided that a woman who does not physically resist the act of penetration shall not, by the reason only of that fact, be regarded as consenting to the sexual activity”.

However, simultaneously, according to a Supreme Court document of 2013, “by virtue of Exception 2 to Section 375 of the IPC, if a girl child between 15 and 18 years of age is married, her husband can have non-consensual sexual intercourse with her, without being penalised under the IPC, only because she is married to him and for no other reason. The right of such a girl child to bodily integrity and to decline to have sexual intercourse with her husband has been statutorily taken away and non-consensual sexual intercourse with her husband is not an offence under the IPC”.

It is quite strange that the law suggests that marital rape would be considered as a crime only if the wife’s age is below 15, and that just because a girl is married, it gives licence to her husband to force her into sexual intercourse even if she does not give consent.

Now, there are two questions here: in today’s world, who marries at 15? And, what about the rest of the women above 15? Are they liable to be raped after marriage? According to the argument by the court, there is no sexual security for the wife above 15 years of age.

What is the reason for that? The answer is, the court will not get into private matters which occur behind closed doors and such rapes cannot be proved beyond doubt through medical examination. The examination done on rape survivors cannot be similarly conducted on marital rape victims.

By this argument, further questions are raised: when a wife is below 15 years of age and is raped, that is also a private matter, behind closed doors, and cannot be proved beyond doubt. Then, how is it a crime? A pertinent question immediately comes up: is it true that the only purpose of marriage is creation of progeny through sexual intercourse?

If that is the case, then it also suggests that upon marriage, the autonomy of the female body is compromised to the power of the husband’s whims and fancies. Therefore, the court’s logic of criminalising and not criminalising the same act is self-refuting and tangled in its own web.

The ruling by the Supreme Court on October 11, 2017, stating that intercourse between a man and his wife under 18 years of age without her free consent amounts to rape is no doubt a big step towards reduction of child marriages and exploitation, but at the same time it sparks a fresh debate on the rights of women above 18 years, female sexuality and consensual sex among adolescents.

Toothless legislation

Article 14 of the Constitution calls for equality before law and equal protection of all laws. But denying the woman the freedom to express her consent for sex with her partner after marriage violates her fundamental right to equality. Article 21 empowers her with the right to have protection for her personal liberty, but Section 375 of IPC interferes with this right of a married woman who is constantly subjected to forceful sex by her partner after marriage.

The Domestic Violence Act, 2005, recognises abuses against women but it is a civil law and only provides protection and compensation to the victim. These sections expose toothless legislation that worsen gender inequality.

Now, if a woman is raped by her husband and she decides to break the silence and complain, it is interesting to see what recourse is available to her. She goes out of the room and complains to her in-laws, they would in all probability ask her to compromise and give in to whatever her husband says; her own parents, fearing that the issue will become public, would ask her to keep quiet as the marriage may be in jeopardy; the police would possibly ask her to discuss with her husband and arrive at a mutual understanding.

If she goes to court, the law says, it is a part of domestic violence, not a criminal offence. Society will, however, raise many different questions — ranging from her character to her potency and finally end with: then, why did she marry at all?

Who will listen to her? Like Walter de la Mere’s “The Listener”, women would be knocking on many doors, but not find any listener. Publicising the private is the need of the hour so that public humiliation of the accused can break the spiral of marital rape and silence.

(Sabyasachi Dasgupta is Assistant Professor, OP Jindal Global University, India, and Priya Grover is Associate Professor, Symbiosis International University, India)