Marital Rape and the question of ‘consent’

Rape in the present day context has been seen as the most heinous crimes that is prevelant in the society. Rape in the simplest of forms could be defined as an act of coercive sex of non consensual nature by the offender on the survivor (the author has on purpose abstained from the usage of the word ‘victim’ as she believws that the usage of the same defeats the purpose of the crusade around the rights of rape victims.) Gendering the act of rape has been particularly avoided because the issue needs a particular attention though a lot of debates have taken place around it but the issue has not been able to reach a particular standpoint, but that is beside the point and out of the scope of the present context.

Marital rape, though till date, has not been able to find its way in the criminal statutes of the country and finds itself mentioned as an exception to section 375 of the Indian Penal Code. .  A glance at clause 359 and 360 of the Draft code reveals that Macaulay and his fellow commissioners presumably assumed that a woman, through marriage, forgoes forever her right to refuse sexual intercourse with her husband and the husband, thereby, acquires an unconditional and unqualified licence to force sex upon his wife. If we proceed to define marital rape it could be coercive non consensual intercourse by a husband upon his wife within the institution of matrimony. Two things that are alarming in this bare and plain definition of marital rape are the issues of firstly, ‘consent’ and secondly, the breach of trust and the vulnerability of woman to such an atrocious act within the institution of marriage.

In times when the debates around this particular discussion is quite heated, it is most important that we raise the right questions and issues around it. The question is not whether we should criminalize marital rape. It is rather that in criminalizing marital rape how do we unpack the nuanced issue of “consent” which is complex and even moreso within the institution of marriage. If we unpack and get our head around it then ‘consent’ is a very emotinally laden term and it brings us to the juxtaposition of both law and emotion which is complex in itself.

It is imperative to note that what may seem to be consenting on the outside may be the exact opposite on the inside. The question is thus that would the presence of passive submission also amount to rape. For a woman, the exercise of consent before marriage is denied; for any consensual act on her part is often considered a taboo and also in some conditions,  if fullfilled,  put under the realm of ‘statutory rape’ and after marriage is seen to be unnecessary for the act of getting married is seen to be a form of consent for all that is to follow. It is also pertinent to note that even during the process of getting married it is gladly presumed, in an arranged marriage setup, that the girl is accepting to enter into a sexual relationship with her prospective groom. The fact that in such setups the girl has mostly been vehemently been protected from any such contact with the male gender is blatantly denied like the desire that the girl might have to consent to such a relationship or not. This dynamic in the social setup leads the husband to believe that the wife has no say when it comes to protecting her person from his lust as a right not initially exercised is presumed to be forfeited for all times.

Primarily the institution of marriage is regarded with such reverence because it is the starting point of the unit of family. In our cultural setup where live in relationships are still condemend on moral grounds (besides the fact that the same bestows the same rights to the women as the lawfully wedded wife in the eyes of law) giving up on the institution of marriage is considered to be beyond the acceptable standards of moral and cultural behaviour. In short it defies the norm. Also the fact that marriage in our cultural ethos has been seen as a tool to provide the much needed security to the perceived hapless woman gender. Law in the civil remedies that it provides in cases  of domestic violence and divorce (in the form of alimony) foregrounds this deplorable picture of the woman subject that women in order to sustain themselves will have to be in some way or the other be connected to the structure of marriage. Before marriage on the incomes of the parents (read father), during marriage on the husband and after the dissolution of marriage on the alimony that comes through it. This entire nexus of power being controlled by the patriarchal figures of the society leaves the female subject in a vulnerable position.

To add to the injury this structure of marriage demands that the continuance flow of such an economic sustenance can and shall only be ensured when the woman displays “good behaviour” all the time. Law also reinforces such a conduct within marriage by reinstating it through fat alimonies that can be extracted if a such good behaviour has been on display throughout. In the pursuit of such control of behaviour and categorisation of what is accepatble and what is not, it is obvious that dissent is left behind and acqueisce is the only option that is left with the female subject. Therefore, it would not be wrong to say that marriage as an institution negates  the notion of gender equality. In such a situation where there is no question of dissent and the only sexual agency, that can ever be validly exercised by the female subject, is within marriage, choice as an option is negated.

One may argue that a generalization of such sorts and to paint a picture of women so deplorable would not be justified as educated and economically independent women may not find such a difficulty in exercising their sexual agency or saying a ‘no’ when required because the law deals with them differently. This may be true as far as the treatment of law that is metted out to them is concerned, though the author begs to differ. But the counter to such an argument is the fact that women who represent the category mentioned above often find themselves in an uncomfortable position when it comes to question of exercising such sexual agency outside the institution of marriage. To protect themselves from such an ‘unpleasant’ situation they try to come under the rescue of the rape laws that the state provides and validate the then consensual sexual act, even though performed under the false pretext of an impending marriage, as an act of violence i.e. rape. The causes of such invokation are best known to such subjects of law. This creates a problem for the feminist groups crusading rape laws within the marriage because this shows that there is something intrinsically pristine about the institution of marriage that even the female subject is complacent to it.

In rape cases in general, the shift in the enquiry since the times of the judgment of the SC in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat in cases of corroboration of the testimony of the victim (read survivor) has been felt; though however problematic it may seem. The question of enquiry now is not whether the act actually happened but whether there was consent in the act or not. The much hyped Farooqui judgement has though defeated the purpose and has taken the jurisprudence around rape back by a few giant steps where they have negated consent and have ignored the right of sexual autonomy of the survivor. Sadly enough the issue of marital rape has not even reached a stage where the pertinent question is of consent rather than the factual happening of the act; it seems that it is a long way to go for the protection of rights of the women within the so called safe haven of the home and marriage.

Ms.Saumya Sharma

Assistant Professor

Law