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Consent: An Attributive Of Virtue In A Marital Relationship

"The male psycho-sexual logic looks at penetration as punishment. This is the rape that disciplines, the rape that penalizes me for the life I have presumably led. This is the rape that tames, the rape that puts me on the path of being a good wife. This is the rape whose aim is to inspire regret in me. This is the rape whose aim is to make me understand what my husband can do with my body as he pleases. This is rape as ownership." - MeenaKandasamy

Humans are social beings and therefore cannot endure their existence in solitude. They need to collaborate through the institution of marriage for the establishment of a family and the procreation of the offspring. Human beings have myriad kinds of needs and desires that they want to fulfil in their life. It includes the desire of earning money, reputation and sexual desires, etc.

Criminal offences are the wrongful acts that are done while lying low and in a concealed manner. As we all know that the offence of theft is constituted when a movable property is taken away without the consent of the owner. This implies that only by the absence of consent an act becomes an offence punishable by law. Thus, here we can naturalize the concept and the significance of the term "consent" that how important it is, especially when it comes to fulfilling sexual desire. Marriage does not imply the consent of the wife for having intercourse with the husband throughout their life.

The concept of consent is an integral part of a civilized society. The fulfilment of sexual desire within the institution of marriage without obtaining the consent of the wife indicates the deviation from this civilized form and marks the element of barbarism in society.

Discerning the marital relationship

Marriage is construed to be an essential Sanskara out of the total sixteen Sanskaras according to Hinduism. The need for marriage arose for the purpose of regulating a man's life, mainly his sexual life and to fulfill the religious and social obligations. The concept of 'Pativryata' was idealized in ancient times in which woman's individuality was sacrificed. It was considered her prime duty to provide all the services according to the needs of her husband. She was considered as a river that merges into the sea called 'husband' losing her own identity.

Evolution of marriage

The rigidity of the system of marriage has been largely whittled down over centuries as society has evolved. Industrialization, urbanization, and other progressive phenomena have affected the marriage system and thereby resulted in its evolution. The rights of women have also been recognized across the globe. The education of women pervaded the awareness regarding these rights. Adding to that the laws has been evolved befitting the needs of modern society in the sphere of marriage.

An insight into "consent"

Sexual consent can be broadly divided into three aspects. Firstly, it involves the willingness of having sexual intercourse. Secondly, this internal willingness is communicated to the other person by words or behavior either implicitly or explicitly. Thirdly, people need to perceive the communicative cues to discern the willingness of other person.

The Indian society has been governed by patriarchal psychology for a long time which has resulted in the subjugation and suppression of the females at the hands of the males. Their psychology has been portrayed in the laws made by them. The exception of marital rape provided under section 375 of the Indian Penal Code, 1860 [1] is based on the archaic concept of the 'Doctrine of Coverture' which did not treat men and women as equals and the woman was merely the property of her husband.

The Section 375 of the Indian Penal Code,1860 deals with the offence of rape. Explanation 2 of the same entails the definition of consent in rape, but it is not applicable in the case of the sexual act of a man with his wife, providing sheer immunity to the husband in sexual acts. Section 376B of the Indian Penal Code,1860 [2] makes the husband guilty of having sexual intercourse without her consent during judicial separation.

Thus, it clearly exhibits the minds of the framers that they thought that the concept of consent does not hold water within the bounds of marriage which is nothing but clear absurdity. Section 375 treats consent as event-specific which means that consent for one specific sexual act does not mean a continuing consent for further sexual acts in subsequent situations, but on the other hand, the exemption to consent in marriage shows that once consent is always consenting for having sexual intercourse, thus, framers did not pay heed to this event-specific difference in consent in marital sexual intercourse which is discriminatory against the marital rape victims.

Marital rape is a consequence of a man's psychology of sex as a power drive rather than a passion drive i.e. it is the way to control and subjugate their wife. The common belief that a husband can do no wrong to his wife and woman is safe within her own family as it is a sacred institution led to this immunity given to marital rape in the laws.

Justice Verma Committee (2013) was established after the gruesome Nirbhaya rape case of Delhi, which held that consent is a vital part of sexual intercourse and the marital relation between the offender and victim serves no rationality. The report supported its recommendation with the precedents of criminalizing marital rape in various parts of the world. Even after criminalizing the marital rape, it is essential to treat the consent in marital rape in the same manner as in other rape cases otherwise it will be too difficult for the victim to rebut the presumption of consent.

The problem in proving the consent in marital rape rises from the fact that the victim would have past sexual relations with her husband, so it would be hard to discern in which act the consent was given and in which one it was withdrawn. The testimony of the victim and the injuries inflicted on her during the physical act will serve as the major shreds of evidence in deciding such cases. The testimony of the medical examiner and the family members will also be advantageous.

Marriage: the borderline for human rights

The most unreasonable fact that we come across is, beating and harassing one's wife comes under cruelty and makes him guilty under Section 498A of the Indian Penal Code,1860 [3] while on the other hand, raping wife is not an offence, this makes us interpret that physical autonomy is provided to the woman in the marital tie but not sexual autonomy. This partial recognition of the rights of women is nothing but gross injustice to victims.

Judicial intervention

The Indian judiciary does not have any binding verdict on marital rape and still differs in discerning it from state to state, where on one hand, the Kerala High Court has recognized marital rape as a ground to take divorce upholding the sexual rights of women in marriage, while on the other hand, there are some judgements in which marital rape is not accepted as an offence.

Recently the division bench of the Delhi High Court in the case of RIT Foundation v. Union of India [4] gave a split verdict where R. Shakdher J. ruled in favour of striking down of the Exception 2 to section 375 of Indian Penal Code and observed, "Consensual sex is at the heart of a healthy and joyful marital relationship.

Non-consensual sex in marriage is an antithesis of what matrimony stands for in modern times i.e., the relationship of equals. The right to withdraw consent at any given point in time forms the core of the woman's right to life and liberty which encompasses her right to protect her physical and mental being."

He also highlighted the loophole in the given exception that it did not put into consideration the right to refusal of wife to have sexual relations with her husband when he is suffering from sexually transmissible diseases like HIV or a condition when she is in her menstrual period or having ill health, thus foregrounded the right to health of women in their marital relationship which is part of Right to Life under Article 21 of the Indian Constitution[5].

The Supreme Court in Independent Thought v. Union of India [6] raised the bar of 15 years in exception 2 of section 375 IPC to 18 years and recognized the rights and bodily integrity of a girl child, but failed to criminalize the marital rape in general. However, the Supreme Court has upheld the basic human rights of women in various decisions.

In the landmark judgment of K.S. Puttaswamy v. Union of India [7], the apex court held that sexual privacy is a fundamental right and a forced sexual act is a clear violation of that right. This judgement has no clear exception for a married woman, thus the Supreme Court has indirectly upheld the right of married women.

In the case of Joseph Shine v. Union of India [8], D.Y. Chandrachud J. remarked that "�the delineation of the private and public sphere becomes irrelevant as far as the enforcement of Constitutional rights is concerned� the enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality." Hence, the Supreme Court has taken a progressive approach in recent years in upholding the rights of women in the marital sphere.

While on the other hand, government defend their standing for not criminalizing it on the reasoning that criminalizing marital rape will lead to demolishing the institution of marriage, but it fails to recognize that rape is an act that destroys the marriage and family at large in itself. Thus the government needs to accept the fact that such offence exists and disturbs the moral fabric of society.

Conclusion
Marital rape is the criminal act of rape in itself and its gravity and the suffering of the victim do not change when committed by her husband, if so, then why there is no less punishment granted to the husband when he murders his wife. So, there is no rationale for immunizing marital rape in our progressive society. We have accepted the cruel acts like domestic violence and harassment of wife for dowry in the marriage and have made laws dealing with them for the protection of the victim, but then what stops us from recognizing the outrageous offence of marital rape.

The offence is committed against society, thus the punishment must be decided on a human to human basis rather than permeating the relationship bias in deciding the guilt in crimes and if so then it would defy the purpose of our criminal justice system.

References:
  • Meena Kandasamy, When I Hit You: Or A Potrait Of The Writer As A Young Lady 101 (Juggernaut 2018).
  • Raveena RaoKallakuru and PradyumnaSoni,Criminalising of Marital Rape in India: Understanding Constitutional, Cultural and Legal Impact, 11 NUJS L.Rev. 1, 121 146-148 (2018).
  • Astha Bhattacharya, Supreme Court Recognizes Sexual Rights of All Women. So How is Marital Rape Still legal? , THE PRINT, https://theprint.in/campus-voice/supreme-court-recognises-sexual-right-of-women-how-is-marital-rape-still-legal/725574/, (last visited 19 April, 2022).
  • Pranshu Bharti, Consent During Sex Should Always be Legally Essential- Marriage or No Marriage, THE WIRE, https://thewire.in/women/marital-rape-consent-law, (last visited 19 April, 2022).
  • Justice J.S. Verma, Report Of The Committtee On Amendments To Criminal Law 113 (2013)
Cases and Statutes:
  1. Indian Penal Code, 1860, � 375 No. 45, Acts of Parliament, 1860 (India).
  2. Indian Penal Code, 1860, � 376B No.45, Acts of Parliament, 1860 (India).
  3. Indian Penal Code, 1860, � 498A No.45, Acts of Parliament, 1860 (India).
  4. RIT Foundation v. Union of India, MANU/DE/1638/2022.
  5. India Const. art. 21
  6. Independent Thought v. Union of India, (2017) 10 SCC 800.
  7. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
  8. Joseph Shine v. Union of India, AIR 2018 SC 4898.

Written By: Prakshal Jain
, Student at Jagran Lakecity University, Bhopal

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