[dropcap]R[/dropcap]ECENTLY, Dr Shashi Tharoor — a senior Congress leader and the Member of Parliament from Thiruvananthapuram — introduced a private member’s Bill No. 255/2018 titled ‘The Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018’ in the Lok Sabha to amend certain legal provisions with the object to “emphasise on the agency of a woman in her sexual and reproductive rights and to guarantee menstrual equity for all women by the State”. One suggested change in this Bill was to amend Section 375 of the Indian Penal Code, a provision laying the offence of rape.
By amending Section 375, the Bill seeks to criminalise rape of a woman within marriage by her husband (“marital rape”) and expand the scope a woman’s consent to engage in sexual intercourse or sexual acts as relevant even within a marriage.
The Bill also stipulates that “that the women’s ethnicity, religion, caste, education, profession, clothing preference, entertainment preference, social circle, personal opinion, past sexual conduct or any other related grounds shall not be a reason to presume her consent to the sexual activity”.
Law currently silent on consent within marriage
The law in India is currently silent on “consent” as a foremost requirement for sexual relations within a marriage. It even goes a step further and sanctions sexual relations without consent within a marriage under Exception 2 to Section 375 IPC. Section 375 Exception 2 of IPC reads as: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” In 2017, the Supreme Court in Independent Thought v. Union of India, 2017 SCC OnLine SC 1222 has struck down the exception to marital rape for a minor wife below 18 years of age, holding the exception as arbitrary and ultra vires.
The effect of the exception is that if a husband has sexual intercourse with his wife against her will and without her consent, he cannot be held liable for committing rape on her. The only punishable instances of rape committed within a marriage are: firstly, where the wife is a minor and secondly, when spouses are living separately under a decree of judicial separation.
[Section 376-B of IPC reads as: Sexual intercourse by husband upon his wife during separation: Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.]
The punishment prescribed for cases of marital rape during subsistence of a judicial decree of separation is, however, lower than the punishment for rape under Section 376 IPC. [Section 376 reads as: Punishment for rape: Rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.]
Law thus clearly validates permissibility of marital rape in favour of the husband. The absence of criminal liability for committing marital rape by the husband with his wife, except the above two instances, has remained unchanged since its adoption during the pre-constitutional era. The exception to marital rape in the IPC was inserted in Clause 359 of Macaulay’s Draft Penal Code and was retained in the final version of Section 375 after deliberations by the Select Committee in the 1960’s version of the IPC. It is thus reflective of the prevailing societal standards in India and other parts of the world at that time.
So far, the amendments to the exception have only been with respect to the age of the wife where the age of consent was increased to 15 years. The age of consent was increased from 10 years to 15 years by Act 43 of 1983, § 3, for § 375 and § 376 (with effect from December 25, 1983) and was retained by Criminal Law Amendment Act, 2013.
Legislature tone deaf to women’s voices
However, the lack of criminal liability for marital rape has been retained despite objections and serious concerns voiced by the women’s movement and legal luminaries over the years. Even after the recent recommendations by the Justice J S Verma Committee in 2013 and Pam Rajput Committee in 2015, the lawmakers have taken no action against marital rape. Instead, the government relied on a report prepared by the Rajya Sabha Parliamentary Standing Committee on Home Affairs opposing the removal of the exception on marital rape.
The 167th Parliamentary Standing Committee Report on Home Affairs on the Criminal Law (Amendment) Bill, 2012 (“Parliamentary Standing Committee’s Report”) states: “The Committee felt that if a woman is aggrieved by the acts of her husband, there are other means of approaching the court. In India, for ages, the family system has evolved, and it is moving forward. Family is able to resolve the problems and there is also a provision under the law for cruelty against women. It was, therefore, felt that if the marital rape is brought under the law, the entire family system will be under great stress and the Committee may perhaps be doing more injustice.”
While the definition of domestic violence includes forced sex within a marriage under the Protection of Women from Domestic Violence Act, 2005, the penal provision of Section 375 IPC precludes it from being viewed as an offence. If marital rape is criminalised, the grave nature of rape irrespective of marital status will truly be recognised. Marital rape is a form of sexual violence within marriage and its enormous social, intergenerational and economic costs are extensively recorded in international and domestic literature.
In fact, the World Health Organisation fact sheet on ‘Violence against women: Intimate partner and sexual violence against women’ (updated in November 2016) states that domestic violence prevents women from contributing productively to the family, the economy and public life and drains resources from social services, the justice system, health care agencies and employers; and lowers the overall educational attainment, mobility and innovative potential of the survivors. Women may suffer isolation, inability to work, loss of wages, lack of participation in regular activities and limited ability to care for themselves and their children. Women absent themselves from employment as a result of the injuries and stress and further costs arise when women lose jobs as a result of absence or reduced performance and are compelled to relocate.
With the persistent retention of the exception of marital rape, the lawmakers have assured that women on their marriage are exposed to unlimited amount of sexual perversion at the hands of their husbands and her body, soul and mind becomes into an object for consumption. It is here that a woman’s consent becomes critical to her voluntary participation in the sexual act.
State cannot legitimise spousal sexual violence
Things are beginning to change, however. In a recent, unusual but a persuasive Order dated November 6, 2017 of the Gujarat High Court in Nimeshbhai Bharatbhai Desai v. State of Gujarat, Cri. Misc. Application (for Quashing and set aside FIR/ Order No. 26957/2017), the court has pertinently observed that marital rape refers to “unwanted intercourse by a man with his wife obtained by force, threat or force, or physical violence, or when she is unable to give consent” and “it is a non-consensual act of violence perversion by a husband against the wife where she is abused physically and sexually.”
It is essential to criminalise marital rape in order to break the age-old understanding that “marriage sanctions sex” or that married women are incapable of giving consent or that consent is presumed/implied upon marriage. This understanding only legitimises the patriarchal notion that a woman is the property of her husband after marriage. Moreover, no provision in India states that consent of a wife is presumed upon marriage. Further, by allowing marital rape to go unpunished and by sanctioning it without fear of punishment, the State allows a common form of spousal domestic violence to perpetuate. Even if one wrongfully claims that there is a civil remedy available for forced sexual intercourse, there is no criminal remedy at all. Further, the available data on marital rape especially on the impact on women’s health cannot be ignored and outweigh the allegations or concerns of misuse of the provision criminalising marital rape.
Medical practitioners and psychologists also claim that familial structures have also systematically failed to protect the injustice caused to a wife in case of rape by the husband. Hence, the argument that the State should not interfere in familial structures as they are private spheres effectively denies married women their right to dignity, personal autonomy and bodily integrity.
Therefore, if an affirmative model of consent as also in Dr. Tharoor’s Bill is adopted in marriages where a husband is not left to make assumptions and where sexual intercourse is understood beyond the contemporary connotation such as an “act of passion, actuated by libido” and other regressive and reductive perceptions based on confused desires on account of differences in gender relations, it will only help in achieving substantive equality between the genders within the country in its true spirit.