Introduction
In the institution of marriage, the aspiration is to lead a life characterized by values such as honour, well-being, compassion, freedom, love, and comfort. However, in societies like India, a prevalent issue is the existence of male dominance.
This dominance significantly affects the dynamics of marital relationships between men and women. There's a deeply rooted belief that women are considered possessions of men, leading to an unequal power dynamic where men exert complete control and authority over women. Men objectifying women as mere objects of desire often exploit them in multiple ways. This exploitation extends beyond infringements on their independence, domestic respect, and societal mistreatment, frequently manifesting as sexual or mental harassment.
This essay highlights a pressing issue, focusing on marital rape. It seeks to answer whether a woman's consent is always implied when she has sexual intercourse with her legally wedded husband. The article explores the definitions of marital rape and consent, delves into why these offences are not universally regarded as crimes against humanity and suggests legal and cultural safeguards to protect women from marital rape.
Interpretation of Consent in Marital Rape
People's exercise of freedom and self-determination is a fundamental aspect of making personal decisions, and consent stands as a vital expression of this autonomy. It is a cornerstone of equality, freedom of choice, and personal autonomy in all human interactions. The legal system appropriately recognizes the importance of contracts in various economic contexts, making them void and unenforceable without proper authorization.
In India, marriage holds a sacred and religious significance, uniting not just a husband and wife but also their respective families. Within this context, the consent of the husband and wife takes on particular significance, surpassing the importance of the consent of other parties. This is because the essence of a marriage is defined by the strength of interpersonal bonds and mutual understanding.
However, within the realm of matrimonial law, the concept of free consent can often take on a somewhat negative connotation. It is defined by the absence of factors like deception, compulsion, or undue influence. As a result, the value attributed to the parties' consent in a marital contract isn't always consistent.
Some view a woman's husband as her entire world, believing he absorbs her identity and life. This perspective can lead to the argument that a man, as an integral part of her life, cannot commit acts of aggression, assault, or rape against her. This perception implies that the marriage contract inherently assumes her ongoing consent, thereby rendering her "NO" insignificant. The notion that a married woman's body belongs to her husband and can be used at his discretion perpetuates a fundamental disrespect for her free consent.
This dehumanizing perspective reduces a woman to the status of a commodity, treating her as if she were an inanimate object devoid of freedom or dignity, incapable of expressing her desires through consent or refusal.
Additionally, under the Indian Penal Code, women are categorized as "wives" and "women," even though engaging in sexual activity with a woman without her consent is subject to legal penalties. In the case of the second group, it is legally stipulated that having intercourse with a "wife" who is under the age of 15 constitutes rape, as it is assumed that she cannot provide consent. Although, involving in coercive sexual intercourse with a wife over the age of 15 years of age is not considered rape as it assumes implicit consent is given due to the matrimonial ties.
The Assumption of Infinite Consent
Marital rape is typically defined as non-consensual sexual contact, including oral, anal, or vaginal acts, achieved through coercion, threats, or without the wife's consent. However, a significant limitation of this narrow definition is that it excludes specific groups of women.
For instance, it doesn't recognize a married woman as a victim of sexual assault by her husband. The rationale behind this notion is that once a wife has given herself to her husband into the institution of marriage with mutual consent, she accepts everything that comes under the realm of marriage. Consequently, the husband is typically exempted from being charged with rape against his lawful wife.
As members of the dominant class, men have internalized the idea that women are their property. In this view, the value of women is often linked to their "sexual purity." Consequently, some may argue that rape can be seen as a property crime, targeting not just the victim but also the victim's parents or husband.
Historically, when a woman endured sexual assault, she was often perceived as less valuable property. In some cases, the father or the husband rather than the victim received compensation for the crime done to her. Hence, exclusion for marital rape appears to stem from this historical practice.
Since a woman was seen as belonging to her husband, and actions against one's property were typically not deemed criminal, it was believed that when a man forced sex on his wife, no crime was committed. In Victorian patriarchal society, a prevailing belief was that a woman forfeited her right to refuse sexual intercourse with her spouse once she married. Consequently, it was widely held that her husband was given an unconditional licence to coerce her into having sex.
However, the concept of infinite consent has long lost its relevance, as seen by the House of Lords' landmark decision in 1991 (R v. R). In a unanimous ruling, the House of Lords emphatically declared, "Today it cannot seriously be maintained that by marriage, a wife irrevocably submits herself to sexual intercourse in all circumstances." They further concluded that marital rape exceptions "no longer have a place in the law of England" due to the recognition of husbands and wives as equal partners within marriage.
This obsolete marital contract, which had restricted a woman from exercising her right to retract her consent to sexual intercourse with her husband, served as the foundation for this exemption. Additionally, in the landmark case FWLD v. HMG it was held that taking into account the rapid changes in criminal law standards and principles, it is not only suitable but also highly recommendable to classify marital rape as a criminal offence.
No longer can it be argued that a man is immune from criminal prosecution in the horrific and brutal act of rape, merely because he is married to the victim. In such cases, the husband must be held accountable under the law for the offense committed.
What hinders India from enacting legislation to criminalize marital rape, as most other nations have done? This argument isn't about blindly adopting Western ideals but, rather, about delivering long-overdue justice to its people. With the alarming rise in crimes against women in the country, it becomes imperative to scrutinize and rectify any legal provisions that condone this injustice.
India’s Judicial Stance on Marital Rape
It's of utmost importance to stress that, while it remains legal, marital rape is widely considered abhorrent in India. However, women who experience sexual abuse by their spouses and wish to report the assault find themselves in a challenging situation. This is primarily due to the broad exception for marital rape outlined in Section 375 of the Indian Penal Code, 1860.
Under Section 376 of the Indian Penal Code, rape is punishable with a minimum sentence of seven years to life in prison, along with a fine. However, the penalties take a drastic turn if the offender is the woman's spouse and is under the age of twelve. In such cases, the perpetrator may face a fine, a two-year term, or a combination of both as potential consequences.
Therefore, there is no law which specifically prohibits a man from having forced sex with his legally married wife, except in the said circumstance:
“When a man has sexual intercourse with his wife and if the wife is not younger than fifteen years of age then it is not considered as rape ”
“Sexual intercourse by husband upon his wife during separation.”
In the landmark decision of Independent Thought v. Association of India, the Indian Supreme Court established a significant safeguard for adolescent mothers and their children. It declared that engaging in sexual relations with a spouse who is younger than eighteen is unjust and a violation of the fundamental rights protected by the Indian Constitution.
The Protection of Women from Domestic Violence Act was enacted in 2005. While it did not explicitly classify marital rape as a criminal offence, it did categorize it as a form of domestic abuse. Under this Act, a woman who has been a victim of spousal rape has the option to seek a legal separation from her spouse through court proceedings.
However, the existing legal framework does not offer women adequate protection from harm or comprehensive insurance coverage. Women remain unable to effectively defend themselves against marital rape due to the overall inadequacy, ambiguity, and poor wording of the legislation governing rape.
In the case of Nimesh Bhai Bharatbhai Desai v. State of Gujarat, the Gujarat High Court examined the laws surrounding sexual assaults. The verdict emphasized that husbands should be well aware that marriage does not grant them the right to forcibly engage in sexual acts with their spouses. Marital rape, a heinous crime, has eroded public confidence in the institution of marriage and remains a pressing issue in India. Countless individuals have been affected by this problem.
Need for Legal Reforms
When it's assumed that a wife has given permanent consent for sexual activity, it goes against the values of gender equality and outdated beliefs. This contradicts Article 14 of the Indian Constitution, which promotes equal treatment under the law and equal protection. It's unfair to divide women into two categories based on their marital status. In the case Joseph Shine v. Union of India, Judge Chandrachud emphasized that marriage, whether seen as a contract or a sacrament, doesn't diminish the autonomy of either spouse.
The Supreme Court, in the case of Justice K.S. Puttuswamy v. Union of India, recognized the right to privacy as a fundamental right for all individuals under Article 21. This right to privacy encompasses the freedom to make personal choices regarding relationships and sexual orientation. Therefore, it acknowledges that women, irrespective of their marital status, have the right to give or withhold their consent in matters of sexual activity freely.
Ultimately, in the Vishaka v. State of Rajasthan case, the highest court concluded that rape constitutes a violation of a woman's liberty and dignity. The court acknowledged that rape can inflict long-lasting physical and mental harm on a woman, as well as influence the collective mindset of society. In light of these verdicts, it becomes pressing and essential to reassess the constitutional validity of the "marital exemption" in the context of rape.
Conclusion
The interpretation of consent in the context of marital rape highlights the complexities and contradictions within Indian law and society. The concept of free consent within matrimonial contracts is marred by antiquated beliefs that a woman's husband is her world, implying that he possesses an irrevocable right to her body.
This perspective devalues a woman's autonomy, reducing her to a mere object devoid of freedom and dignity. The "Infinite Consent Theory" that once a woman is married, she accepts everything under the realm of marriage is outdated and inhumane. Therefore, the consent by a married woman for sexual intercourse is not implied. It perpetuates harmful ideas of women as property and denies them their fundamental right to consent.
To sum it up, India must confront the uncomfortable truths surrounding marital rape and take decisive actions to criminalize it. Only by doing so can the nation uphold the principles of equality, dignity, and justice for all its citizens, regardless of their gender or marital status. It is only then that India can move forward towards a more equitable and just society, free from the shackles of archaic norms that deny women their basic human rights.
