FINDING WILL AND CONSENT IN MARITAL RAPE

 Abstract 

This article critically examines the legal, constitutional, and social dimensions of marital rape  in India, focusing on the fundamental concepts of will and consent. Despite the Indian Penal  Code clearly defining rape and the necessity of a woman’s voluntary consent, it continues to  exclude non-consensual sexual acts between a husband and wife from the definition of rape.  This exception not only undermines the woman’s autonomy but also contradicts the very  principles of equality and dignity enshrined in the Indian Constitution. 

The paper highlights the difference between ‘will’ and ‘consent’ in sexual relationships,  particularly within the confines of marriage, emphasizing that consent obtained through fear  or compulsion is not genuine. Through a legal lens, it underscores how the existing marital  rape exception violates Articles 14 and 21 of the Constitution, which guarantee equality and  the right to live with dignity. Furthermore, it critiques the social narrative that marriage  implies perpetual sexual consent, thereby allowing for the continued victimization of women  under the guise of tradition. 

The article calls attention to the alarming statistics surrounding spousal sexual abuse and  questions the reluctance of lawmakers to criminalize such acts. It argues that civil remedies  under domestic violence laws are insufficient and that criminalization is necessary to ensure  justice and deterrence. Drawing on constitutional principles, judicial observations, and  international human rights standards, the article advocates for the removal of the marital rape  exception in Indian law. 

Ultimately, the article asserts that marriage should never be a license to override consent and  that recognizing marital rape as a crime is essential to achieving gender justice. It concludes  by reinforcing that the right to say “no” must be preserved within marriage, and that  consent—free, informed, and enthusiastic—should be the cornerstone of every intimate  relationship.

Introduction 

Marital rape is a disturbing form of abuse that occurs within the boundaries of marriage,  where one partner—typically the husband—forces the other into sexual activity without  consent. Despite the supposed sanctity and mutual respect embedded in the institution of  marriage, the grim reality is that many women are forced to endure sexual acts against their  will. The emotional, mental, and physical trauma caused by such acts is compounded by the  fact that marital rape remains unrecognized as a criminal offence in India, unlike in most  progressive nations. 

The very idea that a marriage license can override a woman’s autonomy is deeply  problematic. Unfortunately, countless married women silently suffer because society and the  legal framework continue to uphold outdated norms that privilege male dominance over a  woman’s body. This article delves into the concepts of will and consent in the context of  marital rape and examines the existing legal contradictions that contribute to the continued  victimization of married women. 

Understanding Rape and Marital Rape in Indian Law 

Under Indian law, Section 375 of the Indian Penal Code (IPC) lays out the definition of rape.  According to this section, a man commits rape if he engages in certain forms of sexual  penetration—vaginal, oral, anal, or urethral—without the woman’s consent, or under specific  circumstances that vitiate such consent. 

The law outlines six distinct situations where such sexual acts amount to rape: 

1. When the act is done against the woman’s will. 
2. When it is done without her consent. 
3. When her consent is obtained through coercion or force. 
4. When she is unable to communicate consent. 
5. When she is under the age of 18, regardless of consent. 
6. When her consent is obtained while she is of unsound mind or intoxicated, rendering  her incapable of understanding the nature of the act.

Further, the IPC acknowledges that consent must be a clear, affirmative, and voluntary  agreement given by the woman—expressed either through words, gestures, or any other form  of communication. This consent must be freely given without pressure, manipulation, or fear. 

Despite this, Indian law provides a disturbing exception: if a man has sexual intercourse with  his wife and she is not under the age of fifteen, it is not considered rape. This legal loophole  effectively denies married women the basic human right to withhold consent, suggesting that  marriage nullifies a woman’s agency over her own body. 

This contradiction within the law exposes a patriarchal mindset, where a husband’s desire is  prioritized over the wife’s autonomy. In many traditional households, the idea of seeking the  wife’s consent before sex is either considered irrelevant or outright ignored. The assumption  is that marriage implies perpetual sexual availability. This assumption is not only outdated  but deeply oppressive. 

Will vs. Consent in Marital Relationships 

To grasp the full impact of marital rape, it’s essential to differentiate between “will” and  “consent.” A woman’s will reflects her personal desire and inner inclination—her voluntary  wish to engage in or avoid an act. Consent, on the other hand, is the act of permitting or  agreeing to something. While the two are closely related, they are not always the same. 

There may be instances where a woman gives her consent out of fear or compulsion, while  her will is entirely absent. Conversely, if an act is done against her will, it is clearly non consensual. Thus, in marital rape cases, both the will and consent of the woman are often  missing. This means that the act is not only undesired but also unauthorized by the victim. 

The fact that marital rape involves forced sexual intercourse without the woman’s consent  clearly meets the definition of rape under the IPC. However, because of the exception clause  in Section 375, the law refuses to acknowledge such cases as criminal offences. This directly  contravenes the principles of justice and equality enshrined in the Indian Constitution.

Why Marital Rape Is Still Not a Criminal Offence in India 

Globally, the majority of countries recognize marital rape as a criminal offence. However,  India remains one of the few where this form of violence is not punishable under criminal 

law. This not only reflects poorly on India’s commitment to gender justice but also represents  a gross violation of women’s fundamental rights. 

This legal exemption goes against Article 14 of the Indian Constitution, which promises equality before the law and equal protection of the law. By denying protection against rape to  married women, the law discriminates between married and unmarried women. 

Moreover, it violates Article 21, which guarantees the right to life and personal liberty. This  includes: 

∙ The right to live with dignity. 

∙ The right to bodily autonomy. 

∙ The right to privacy. 

∙ The right to make personal decisions without coercion. 

In the landmark Justice K.S. Puttaswamy (Retd.) vs. Union of India case, the Supreme Court  underscored that every individual, regardless of gender or marital status, has the right to  privacy and autonomy. Thus, forcing a woman into sexual acts—even within marriage— violates her fundamental right to make intimate decisions for herself. 

However, defenders of the status quo often argue that criminalizing marital rape would  “destabilize” the institution of marriage or “misused” by women to harass their husbands.  These arguments are not only regressive but also dismiss the daily trauma endured by  thousands of married women. Should marriage be a license to exploit? Does a wedding ring  erase a woman’s human rights? 

The core issue here is not about protecting the sanctity of marriage but about protecting the  dignity of women. Upholding a marriage that permits coercion is far more damaging than  holding perpetrators accountable for their crimes.

Factors to Consider in Criminalizing Marital Rape 

If physical violence like beating a spouse is criminalized, why should sexual violence within  marriage be considered acceptable? Assault, abuse, and battery are criminal offences,  whether committed by a stranger or a spouse. Yet, the same logic is not applied to marital  rape.

This inconsistency in the legal system must be addressed. The marital rape exemption clause  in Section 375 should be removed so that women, regardless of their marital status, can  exercise their constitutional right to say no. Every woman deserves to have control over her  own body. 

Some argue that laws like the Protection of Women from Domestic Violence Act, 2005, already offer protection against sexual abuse in marriage. However, this is a civil law and not  a criminal one. Civil remedies do not carry the deterrent effect of criminal punishment and do  not adequately reflect the severity of rape as a crime. 

International human rights treaties, such as CEDAW (Convention on the Elimination of All  Forms of Discrimination Against Women), have repeatedly recommended that India  criminalize marital rape. National commissions and law reform committees have echoed the  same, yet legislative inaction persists. 

Data paints a grim picture: the National Family Health Survey (NFHS-4) in 2018 reported  that 31% of Indian women experience physical, sexual, or emotional abuse from their  husbands. Additionally, 83% of married women aged 15 to 49 claimed they had faced forced  sexual acts by their husbands. These figures highlight the magnitude of the crisis and the  urgency to reform the law. 

By retaining the marital rape exception, the law essentially condones forced sex within  marriage. It strips women of the right to refuse and denies them the dignity and security  guaranteed under the Constitution. 

Justice D.Y. Chandrachud aptly stated, “The right to say ‘No’ should be preserved even after  marriage.” This emphasizes the idea that marriage does not equal ownership. Women do not  surrender their rights at the altar.

Case Laws

1. Independent Thought v Union of India 

Facts:- 

For this situation, the candidate was Independent Thought, a public common liberties  association enrolled in 2009. In the public interest, the candidate documented a writ request  under Article 32 guaranteeing that the Exception 2 to Section 375 of IPC is both erratic and  prejudicial towards a young lady kid. 

The Criminal Law (Amendment) Act, 2013, expanded the period of assent for sex from 16 to  18 years. In any case, the Exception 2 notices non-consensual sex of a spouse with his better  half and for that, the age is over 15 years. The POCSO Act 2012 set the period of consensual  sex as 18 years. Special case 2 is problematic to Section 3 of the POCSO Act which has  condemned penetrative rape. 

Judgement:- 

The Division Bench gave the accompanying judgment while examining every one of the  important issues connected with the case: 

The exemption 2 separates between a wedded young lady kid and an unmarried young lady  kid with practically no sensible nexus. It disregards the substantial trustworthiness, pride and  regenerative decision of a young lady kid. 

The Parliament has expanded the age for giving assent, the age from union with 18 years. So,  the age of 15 years in exemption 2 is preposterous, vile, uncalled for and disregards the right  of the young lady kid. 

The exemption 2 expresses that sex or sexual demonstration by a man with his significant  other isn’t assault on the off chance that she is over 18 years. 

2. Tulsidas Kanolkar v. The State of Goa 

Fact:- 

For this situation, the casualty was intellectually debilitated. The accused took advantage for  her psychological circumstance and had sex with her. Nobody knew about it until the group 

of the casualty figured out that she was pregnant. Whenever asked who exploited her, she  pointed fingers towards the denounced. The body of evidence was recorded against him  where he took the request of consent as accommodation to the demonstration. 

Judgement:- 

It was held that the accused took advantage for the psychological impediment and  vulnerability of the patient. In such a situation no inquiry of consent emerges in light of the  fact that a slow-witted young lady can’t give consent. Furthermore, accommodation doesn’t  infer consent which can likewise be because of dread or vitiated by coercion or weakened  because of mental impediment. The charged was approached to pay a fine of Rs. 10000 and  discipline with 10 years of detainment. 

3. Bhupinder Singh v. Union Territory of Chandigarh 

Facts:- 

In this case, the accused and the victim worked in the same bank. After sometime they  married and started cohabiting in 1990. The victim was pregnant in 1991 and was asked to  abort her child. She again became pregnant and during that time she learned from one of her  husband’s friends that he was already married before marrying her. She tried to contact the  accused after this but he was nowhere to be found. She filed a complaint against him. 

Judgment:- 

The Punjab & Haryana High Court held the accused liable under various sections of IPC  including Section 376 for rape. The women had sexual intercourse with him only due to the  reason that she considered him as her husband but in reality, he was not her legal husband. 

Conclusion 

As per me marital rape however a special case in segment 375 of IPC ought to be made a  criminal offense in a nation like INDIA, as it is violative of numerous different areas of IPC  and furthermore the Constitution of India. The guidelines and Act are made for the security of  the singular privileges and regard the pride of individual thus, any regulation, rule and act  which is violative of all ought to be proclaimed invalid and void. Furthermore, offense in which it plainly shows the amount it affronts the ladies gives them no option to say NO  neither gives them admittance to their singular privileges. 

Marital RAPE ought to be condemned, as we as a whole know about the reality how man  utilizes his power and power on ladies and keep the will from getting ladies because of which  numerous ladies are the casualty who by some explanation ends it all for all intents and  purposes despite their desire to the contrary and furthermore with an assent yet got forcibly.  Since the old time, man has the privilege to rule over the ladies however in present day India,  this regulation ought to be corrected. 

Likewise, individual blamed for conjugal assault ought to be rebuffed and a cruel regulation  ought to be made to rebuff the entire spouse who thinks “marriage among people is for the  satisfaction if the sexual need of man”. The individual who thinks ladies are not adequately  skilled to deny the choice taken by man and spouses. 

Indeed, even the regulations have been made to safeguard the ladies, additionally as no  improvement is there so there ought to be more regulations and represent the ladies. Indeed,  even the spouse if there should be an occurrence of conjugal assault gives no right to  individuals for giving her assent unreservedly, likewise committing a conjugal assault is  violative of articles 14, article 15, article 21 and as per me segment 375 additionally as it on  one side says that assault is an offense however on different hands incorporate the exemption  for conjugal assault. Additionally, it is violative of the central privileges of the person. It ought to be an offense as in our country numerous ladies are the casualty of conjugal assault.  Likewise, conjugal assault at times can make a man more fierces against the ladies as he most  likely is aware there is no discipline in assaulting a lady for example her better half.

REFERENCES 

1. Constitution of India, Art 21. 
2. Constitution of India, Art 14. 
3. Convention on the Elimination of All Forms of Discrimination against Women, 1979. 4. Independent Thought v Union of India [2017] 10 SCC 800, AIR 2017 SC 4904. 5. Indian Penal Code, 1860, § 375. 
4. Justice (Retd.) KS Puttuswamy v. Union of India Writ Petition (Civil) No 494 of  2012; (2017) 10 SCC 1; AIR 2017 SC 4161. 
5. Mukesh Garg & Nareshlata Singla, Marital Rape under Indian Law: A Study, 1  International Journal in Management and Social Science (July, 2013). 
6. National family health survey report 2018. 
7. Nupur Thapliyal, ‘Marital Rape Will Remain Condoned Unless Criminalized, Marriage Not License To Ignore Consent’: Adv Karuna Nundy Argues In Delhi HC, Live Law, Last Accessed 19th July 2022, https://www.livelaw.in/news updates/marital-rape-delhi-high-court-advocate-karuna-nundy-marriage-not-license to-ignore-womans-consent-190789?infinitescroll=1. 
8. Priyanka Rath, Marital Rape and the Indian legal scenario,2 India Law Journal  (2007).Retrieved from: http://india lawjournal.com/volume 2/issue_2/article_by  priyanka_html. 
9. Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation of marital rape in India:  Understanding its constitutional, cultural and legal impact, 11 NUJS L. Rev. 1 (2018). 12. Right to abstain from sexual intercourse is a long-recognised principle of Indian  constitutional jurisprudence, Govind v. state of M.P., AIR (1975) SC 1378. 13. Shishir Tripathi , Marital rape: How understanding ‘context’ rather than just focusing  on ‘consent’ will help resolve the issue, Firstpost,  https://www.firstpost.com/opinion/marital-rape-how-understanding-context-rather than-just-focusing-on-consent-will-help-resolve-the-issue-10670821.html last visited 19th July 2022.