Consent in marriage is like drinking my morning tea

As we celebrate the recent verdict expanding the scope of the Medical Termination of Pregnancy Act, our anxiety about the appeal of the Delhi High Court's split in the marital rape case, pending in the Supreme Court, is crippling.

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EVERY morning, I take immense pleasure in drinking a cup of milk tea. Yet, I might just wake up tomorrow and prefer coffee instead. I might stop liking tea altogether. In the backdrop of marital rape precedents, I wonder: would the Indian judiciary force me to keep drinking tea eternally because I drink it today? After all, consent is very much like my morning tea. 

On  September 29,  the Indian judiciary passed a judgment that marks a historical feat. In the case of X v Principal Secretary, Health and Family Welfare Department, Govt. of NCT Delhi, the Supreme Court clarified the ambit of the term 'rape' in Rule 3B of the Medical Termination of Pregnancy (MTP) Act, 1971, which specifies the category of women eligible for medical abortion for up to 24 weeks—the normal period of accessing free abortion being 20 weeks. The Court said that the word 'rape' in Rule 3B of the MTP Act also includes marital rape. 

"The meaning of the word 'rape' is sexual intercourse with a person without their consent, regardless of matrimonial context", the Supreme Court held.

The Court finally recognised that married women can also be rape and sexual assault victims. The recognition that consent is unaffected by the institution of marriage is what makes this judgment so historic. After all, a woman does not implicitly and perpetually consent to sexual intercourse by consenting to marriage: a distinction that the precedents willfully ignored. The judgment also recognised violence in interpersonal relationships. This is also a recognition of the feminist rejection of the personal and public divide: the hypocrisy that rape in public spaces is condemned and accepted in private. 

The existing law is Exception 2 of Section 375 of the Indian Penal Code, 1860, which provides that intercourse with a wife is not rape if the woman is over 15 years of age. However, the case of Independent Thought v UOI, 2017, increased the threshold of age to 18 years of age to harmonize with the POCSO Act. 

The progressive character of this judgment is quite evident. The judgment said that 'women' in the Act include those beyond the category of cis-gender women and also made unmarried women the beneficiary of medical abortion up to 24 weeks. The court also clarifies that simply the allegation of — marital— rape is enough for any woman to become a beneficiary. Lodging an FIR or starting a proceeding is not necessary to avail abortion in marital rape cases.

Yet, let us not be quick to celebrate. The Court itself recognizes that this judgment neither strikes down Exception 2 nor holds it unconstitutional. It simply directs a reading of the term 'sexual assault and 'rape' in the MTP Act and rules under the same as inclusive of marital rape. 

This judgment comes after RIT Foundation v UOI, the split judgment of the Delhi High Court on  May 11. In a two-judge bench, the issue raised by four petitions was whether Exception 2 to Section 375 is ultra vires Article 14, 15, 19 (1)(a), and 21 of the Constitution. While Justice Rajiv Shakdher struck down Exception 2 as ultra vires, Justice C.Hari Shankar upheld it as valid. 

Exception 2 violates Article 14. The Navtej Singh Johar case laid down the two requirements for any reasonable classification under Article 14. First, there is no intelligible differentia among rape victims on the basis of their marital status. In fact, by creating such categories, the court might be defining what 'real rape' is. Secondly, the marital classification lacks any rational nexus with meeting the objective of the statute which is to protect women from rape. 

Justice Hari Shankar justifies the differentia by saying that marriage is the most pristine and sacred institution that forms the bedrock of the society where 'rape' is simply unfathomable. But the judgment falters because the utopia is a reality for a handful. Marriage is also often an institution of violence, silencing, and patriarchy. For those who are raped in such an institution, the classification is anything but reasonable.

Further, his judgment buds from the Hale dicta based on the English Doctrine of Coverture. Lord Hale infamously said that the wife irrevocably consents to submit to her husband upon the contract of marriage. Thus, their marital rape ceases to exist. More than two centuries later the ghost of Hale still haunts us. But consent is never absolute nor eternal. Consent might have been wholly absent in the Indian reality of arranged marriages. 

The judicial strike down of Exception 2 was contended as infringing upon the doctrine of separation of power. The court cannot create a new offence; only the democratically elected legislature can. But the court would not be creating a new offence: it would simply strike down an exception to an existing offence, creating a new class of offenders: husbands. 

Another interesting contention was the difficulty in finding evidence of consent in marital rape. The court, however; has to filter the 'grain from the chaff' — seek truth— in every case of sexual violence. This is insufficient to prevent the statutory acknowledgment of marital rape.  

The dissent costs us the criminalisation of marital rape. Today, as we celebrate the new MTP verdict, our anxiety about the appeal of the split pending in the Supreme Court is still crippling.