Marital rape: does consent matter, Summaries of Law

Download Marital rape: does consent matter and more Summaries Law in PDF only on Docsity!

Topic: Marital Rape- Does consent matter

Marital rape, Exception 2 to section 375 of IPC, states that 'unwanted sexual intercourse between a man and his wife if the wife is not below 18 years of age, is not a crime.' This topic has gained much importance after the pandemic hit the country, resulting in nationwide lockdown forcing people to stay indoors. This created a scenario where the women, having abusive partners, got trapped in the same houses leaving no escape for them to minimize the violence at the hands of their partners. According to various government reports, there has been a rapid rise in marital rape complaints in South Asia, including India, during the lockdown. In India, Marital rape is a topic that has made the meaning of consent so vague. Our law still believes in the theory that a wife is implied to have given her consent to enter into a sexual relationship with her husband once she enters into a marital relationship with him. This law is just another example of the patriarchal notion that believes a wife to be the property of her husband and that she has no control over her body. This idea strengthens the notion that marriage gives license to rape. In the case of Phulmoni Dasi,^1 the sexual intercourse between a man and his eight-year-old wife resulted in the death of his wife due to excessive bleeding, and the man was charged not under rape but culpable homicide not amounting to murder. This is the epitome of what implied consent means in our nation. A country, which prides itself on the equality notion of its constitution, by inserting in it articles such as Article 14, which claims to ensure that "the state shall not deny to any person equality before the law or the equal protection of the law within the territory of India", 2 fails to provide the same to its female victims who have faced such heinous act at the hand of their husbands. Going back in history, this law gains its origin from the British colonial rule in the Victorian era. 3 Victorian law followed patriarchal norms and did not consider women to be equal to men. They believed that married women do not contain any independent identity of their own and merged the identity of a wife with that of her husband under the 'doctrine of covertures' and didn't even allow married women to have a property of their own. The situation in India has changed a lot since independence. Women have been granted various rights and protections today to save them from atrocities which they had faced under a patriarchal society. The (^1) 1819 ILR 18 CAL 49 (^2) Indian cons 2 tu 2 on, Ar 2 cle 14 (^3) Jill Elain Hasday, Consent and Contest: A legal history of Mar 2 al rape, 88 Calif L. Rev. 1373 (2000)

continuation of such law in India even today shows its blatant ignorance towards the discriminatory nature of this act. The unmarried women are protected against the same act but somehow the marital status of women devoid them of their right of being protected against such atrocities. This discrimination works against the idea of Article 21 which includes the right to privacy, sanctity to females, and to make choices relating to sexual activity^4 Marital rape is a topic overlooking which erodes our society and the status of women deeply. This patriarchal rule puts women in a position where they do not have any control over their body and have unequal power within the institution of marriage. She faces double victimization as she is forced to live with her perpetrator resulting in re-victimization as there exist no law to act as a deterrent to such crime. The result of the National Health and Family Health Survey 2015-16 shows that around 71% of married women experienced sexual violence when their husbands were drunk 5 Many cases go unreported due to various other reasons, such as not having any support from family or fear of the abusive partner, societal pressure, etc. One of the many reasons is also the lack of proper sexual knowledge. In India, the topic of sex is considered taboo and is hardly discussed healthily. Teenage girls are left alone to figure out their sexuality and hardly understand the sexual changes of the other gender. This ultimately results in women being submissive at the hand of their male partners. Legislators too, avoid their responsibility by simply stating this issue to be extremely private and that finding out whether consent was given or not is very difficult and could result in false accusations. Is this a valid defense for continuing an act that is not only derogatory to women but also affects them physically and mentally? There are several false cases filed for various crimes. Isn't it the duty of the judiciary to look into the matter of false cases? This crime should not be left protected under the guise of "internal matter of the family" anymore. Looking around the world, some countries are taking various steps to curb the issue of marital rape. The USA has criminalized marital rape in most of its states. The United Kingdom, from which India derived this law, has made every sexual act between two individuals, being done without consent, a criminal act. It has given no importance to topics such as whether the victim was living with the accused or was married to the accused or (^4) Jus 2 ce K.S. PuNaswamy vs. Union of India, Sec 2 on 376 IPC Suchita Srivastava & Anr vs. Chandigarh administra 2 on on 28 August

(^5) Ibid; 570.

not. The only relevance is provided to the fact that whether there was consent or not. If the act was not consensual then it will be considered rape. The landmark judgment in the case of R v R, 6 it was argued in the court of England where the defendant claimed that has he the right to rape his wife, which was presumed to have been given to him by the contract of marriage. To this, both the House of Lords and The Court of Appeal stated that English law does not treat marital rape as an exception and it would be considered as rape if consent was absent. When drawing a comparison between the laws of these countries to that of Indian law, we can see India has not taken any deterrent step for this heinous act. Giving the excuse that criminalizing this act would result in undermining the sanctity of marriage is of no logic as when a woman faces such treatment at the hand of her husband, whom she had faith in; the bond itself loses its piety. It not only infringes upon women's rights but at the same time, it also violates certain constitutional provisions. The argument that institution of marriage would not sustain if marital rape is allowed to be a criminal offence is flawed in itself as it bases the sustenance of marriage on coerced sex. If that basis is wrong, then the topic of criminalization needs no further contention. And if the argument is correct, then do we actually need to protect such institution whose sustenance depends upon coercion? As it is rightly said that a nation's development depends highly on the treatment its women receive. It is high time that our judiciary stops guarding such derogatory acts, as marital rape in all senses is a violation of a woman's right to life and personal liberty, her right to dignity, and her physical and mental wellbeing. Word count- 1250 Submitted by Parul Srivastava. Government law college, Mumbai. BALLB, 1st year student. (^6) R v R (1991) UKHL 12