Is it not rape?

TW: Rape, abuse

At the outset, it is helpful to remind ourselves of what is the definition of ‘Rape’ which is duly recognized by Indian law as an offence under Section 375 of the Indian Penal Code, 1860 (IPC) –

It says, “a man is said to have committed the offence of rape if he has sexual intercourse (of defined description) with a woman under the following 7 situations:

  • Against her will
  • Without her consent
  • With her consent, when her consent has been obtained by putting her in fear of death or of hurt of her/her loved ones
  • With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
  • With her consent, when, at the time of giving such consent, by reason of unsoundness of mind/intoxication or under influence of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
  • With or without her consent, when she is under 18 years of age.
  • When she is unable to communicate consent.

On a simple reading of this provision, the use of the word ‘CONSENT’ is observed 10 times and is found to be so very explicit in every single line of the definition.

The conundrum that married women in India face is that even though a woman’s will and consent is given so much importance under the definition of Rape, how does the concept completely disintegrate when a woman is married?

This is seen in the exception defined under the same Section 375 which stipulates that sexual intercourse by a man with his own wife is not Rape. The only saving made under this exception is that it does not include any wives under 15 years of age. Pertinently, this has recently been judicially read down in 2017 to include all wives under 18 years of age through the Supreme Court’s ruling in Independent Thought v. Union of India.

This exception of sanctioned sexual intercourse (even against the will and without the consent of the wife aged above 18 years), is further elucidated when we look at the provision included into the IPC by amendment in 2013: it says that it shall be punishable if a man has “sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent.”

So, when a wife is living separately from her husband, the concept of her consent gets reinstated! Although this is a saving grace, it goes to highlight that the rape laws of India have completely taken away the concept of consent from a married woman who is not separated from her husband.

The reasoning can be found in the words of the Law Commission of India, which in its 42nd Report said:

Sexual intercourse by a man with his own wife against her will or without her consent be not called Rape even in a technical sense.” Their rationale was, “this may amount to excessive interference with the marital relationship.”

While citing the above observation by the Law Commission, Prof. K.I. Vibhute from the University of Pune explains this parochial and familial ideology of the rape laws as follows:

“It is believed that the husband’s immunity for marital rape is premised on the assumptions that a woman, on marriage, gives forever her consent to the husband for sexual intercourse. Her husband has the right to have sexual intercourse with her, whether she is willing or not, and she is under obligation to surrender or submit to his will and desire. It also aims at the preservation of family institution by ruling out the possibility of false, fabricated and motivated complaints of ‘rape’ by ‘wife’ against her ‘husband’ and the pragmatic procedural difficulties that might arise in such a legal proceeding.”

This reasoning by the Law Commission is definitely based on an expired thought process. Pitifully, similar reasoning has also been cited by the Supreme Court in the case of Bhupinder Singh Vs. Union Territory of Chandigarh. Here the court said that if a woman is in a void marriage with an already married man, then sexual intercourse by such man with her shall be considered Rape. This again highlights that only married women in valid marriages are not capable of being raped. So, a woman who finds out she is in a void marriage is in a better position to obtain remedy from the courts than a woman who is ‘validly’ married to a man who rapes her. How different is it from marry-your-rapist theory?

The Indian lawmakers have always buried the horror of marital rape under the ambit of sanctity in a marriage. If one must go into the debate of sanctity, how respectable and sanctimonious is a marriage if the husband’s actions strip the wife of every last bit of a her dignity? The preservation of the ‘family institution’ gives free reign to the husband and allows for incessant, unchecked and fully licensed sexual abuse of the validly married wife. This even allows grave violation of her fundamental right under Article 21 of the Constitution of India which grants even a validly married wife the right to life and personal liberty including the right to live with dignity and without harm.

It needs to be remembered that a marriage is essentially only a legally recognized union of two people as partners in a personal relationship which involves sexual activity and intercourse. What needs to be very clearly distinguished is that marriage is not another name for any kind of permanent and irrevocable consent by a wife to her husband for any and all sexual intercourse, and she definitely does not ‘surrender or submit to his will and desire’ in any blanket and all-encompassing manner for his whims and fancies. Merely because of the fact of marriage, a married woman does not lose her individuality and therefore cannot lose her right to give/revoke/refuse consent for sexual intercourse, even with her husband.

One of the biggest misconceptions which exist in the Indian mindset is that within the relationship of marriage, there is an unchecked license held by all men for having sex with their wives. The general population does not seem to comprehend the difference between the act of ‘sex’ (or sexual intercourse) and ‘rape’. We need to remind everyone that sex does not equate to rape, and rape does not equate to sex. Rape is the act of sex being done without the consent of the partner. So, the act of sex with a wife by a husband without HER CONSENT is Rape. This amounts to rape in every aspect of the offence and the Indian public as well as the lawmakers need to take note.

According to the latest report of National Crime Records Bureau in the year 2017, the total number of crimes committed against women in that year were 3,59,849. The total number of rape cases reported over the three year period from 2015 to 2017 were 34,651, 38,947 and 32,559 respectively. The total number of attempted rape cases reported were 4437, 5729 and 4154 respectively. However, we submit that these statistics provide a deceptive portrayal of the rape statistics in the country. This is because a huge population of married women who are being raped in the country have been completed avoided and rape crimes against these women are not even recognized.

When we do criminalise marital rape, it is reasonable to expect that there will be certain problems in implementation. However that is no reason to tolerate the continuance of horror and violence of rape against married women by their husbands. Some of the problems which can be foreseen include the difficulty in collection of necessary evidence, personal agendas for false complaints, misuse of the law for harassment etc.

However, these problems are no different from the problems encountered during the implementation of all laws in the country. Do we not find murder cases like Arushi Talwar where evidence collection and ambiguity of circumstances were a challenge? Do we not see cyber crimes which are nearly impossible to detect? Have we not come across personal agendas for false complaints in cases of political crimes and corruption? Do we not encounter the misuse of law for harassment of commercial sex workers and the LGBTQ+ community? Have these problems prevented us from enacting the necessary laws? NO.

Marital rape is similar. Awareness is a necessity and criminalization of this form of Rape is indispensable.

This post is Part 1 of our Day 6 of #16days of activism. The authors wish to remain anonymous.

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