This article was written by Ankita Soni, a student of City Academy Law College, Lucknow.
When we are a pedestrian on a road, there is a presumption in our minds that no vehicle can come and run over us just because it is a vehicle and it has a better right over road than us being pedestrians; we know in our minds that any person who even negligently carries his vehicle in such a way that we are hurt shall be punished by law. When we sleep comfortably in our houses, aware of this fact that there might be a burglary, the presumption that whoever causes such act shall be punished by law gives us the sense of protection. These are examples of how our lives and property are threatened at every point of time, and how the presumption of safety, as someone is there who shall stand for us, keeps us going to do our day to day work; in the absence of such presumption, we shall be completely oriented towards keeping our person and property safe rather than doing anything else. It is the presence of law and order in our society that we know what being safe and protected is; it is this presence that keeps us going that even is a wrong is done to us it shall be avenged by law and the perpetrator shall never go unpunished.
Now taking this presumption with respect to an average female in India, the biggest concern for women in India today is ‘not being raped or assaulted’. A woman also goes by the presumption that anyone who violates her basic personal rights shall be punished by law. It is contended that after marriage this sense of security increases, because there is now a man to take care of her security. A woman after marriage goes on the presumption that her husband shall take care of her, and if not much, he shall not assault her person or property. But that is just a contention, a women cannot go on that presumption with his husband also, let alone other males, because now there is a man who has the right to abuse her person without any restraint and the women who doesn’t give into that entitlement of her husband is not a “good wife”.
In India, the lawmakers and judiciary have tried to protect the rights of women, in every field, however they have intentionally left one of the most important field, that of ‘the right of a woman on her person after marriage’ or in the noted term, ‘marital rape’. It is contended that such right being enforced or offence be created the ‘sacrosanct’ institution of marriage in India shall be spifflicated; or the other major concern, frivolous litigations would increase on the basis of this right. The principal argument against such contentions is that WOMEN AND GIRLS ARE HUMAN BEINGS and their fundamental human rights must be protected by law.
MARITAL RAPE AND CONSENT
There are many persons who still don’t understand the meaning of marital rape, i.e. if a women is one’s wife, How any sexual act between them can be called as rape? Marital rape is nothing other than rape, provided that the offender and victim are married[i]. It is same as rape in the aspect that ‘consent is absent’, and this condition is what puts any sexual act under the umbrella of rape and assault.
Consent generally is permission for something to happen or agreement to do something[ii]. It is a mental status which is determined by external conduct of a person. It is an act of reason accompanied with deliberation, the mind weighing, as in balance, the good or evil on either side.[iii] Under the Indian Penal Code, it is defined in Section 90 in negative terms as, Consent is not true consent when it is given under misconception of fact or fear of injury[iv] and it also posits that the accused has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. The meaning of this term in context of sexual offences has been broadened by the Supreme Court of India. It has explained consent as supposing three things- a physical power, a mental power, and a free and serious use of them and if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is treated as a delusion, and not as a deliberate and free act of the mind.[v]
In India, it is presumed that by marrying a person, a woman has consented to every sexual act after marriage until perpetuity[vi], except conditions like judicial separation. For this reason marriage in many cases becomes just a legal contract for sexual relations, where the consent of the wife is always presumed to be present, absolute and unqualified.
But it this point on which every person must be educated; the importance of a Yes or No must be understood by people, only then rape or any sexual assault can be understood, let alone be marital rape. The contention that husband need not to take the express consent of wife always is unsubstantial in itself because the consent being discussed here is not just a formality; a ‘no’ cannot be said to be undeterminable.
STATUS IN INDIAN JURISPRUDENCE
Under the Indian Penal Code, Marital Rape is not recognized as an offence. Within the proper bonds of marriage it is rape only when the wife is under fifteen years of age[vii]. It is paradoxical in itself as the same Section provides that any sexual act with a woman under eighteen years of age, with or without her consent is rape.[viii] But somehow that offence of rape on a woman in the age of fifteen to eighteen comes under ambit of legality when the woman is married to a person. Nonetheless, there is no concept of consent of women after marriage when she is above fifteen years of age according to the IPC.
An year before when India was asked for by the United Nations for the criminalization of marital rape in India, the India’s minister for women, Maneka Gandhi, said in a written response to the Indian Parliament on the matter: “Marital rape is not applicable in Indian context.” She cited reasons such as the “level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mind-set of the society to treat the marriage as a sacrament.”[ix]
The citation of such reasons in itself shows the disregard for the basic right of women in Indian society. The contention that the status of marriage as a sacred institution shall be diminished on the enforcement of marital rape has no grounds because saying so itself derogates the very sanctity of marriage as under this argument marriage is nothing but a contract under which a man gets the right over the body of her wife in perpetuity, that marriage is nothing but a contract for sexual relations. Any custom or social value or religion which derogates such an important right of women needs to be outlawed instantly, rather than being cited as an impediment in bringing about a necessary social change. When ‘illitracy and poverty’ don’t justify crimes as theft and murder, they cannot be cited as a justification for marital rape.
The Constitution of India holds the spirit of gender equality and respect for women.[x] The umbrella of Right to life and personal liberty,[xi] also includes the ‘right to person’ of a woman. The Vienna Declaration and Programme of Action, 1993[xii] recognizes this basic right as, “Gender-based violence and all forms of sexual harassment and exploitation, including those resulting from cultural prejudice and international trafficking, are incompatible with the dignity and worth of the human person, and must be eliminated. This can be achieved by legal measures and through national action and international cooperation in such fields as economic and social development, education, safe maternity and health care, and social support.” Marital rape has been specifically recognized under the Declaration on the Elimination of Violence against Women[xiii] as a form of violence against women. Every civilized member of international community is bound to protect the basic human rights provided for in the international instruments. Consequently, Marital rape should be recognized in Indian Jurisprudence to protect the very basic right of every married woman to her person.
If the ‘right to life and property’ of a married women are protected under the provisions of the Indian Penal Code, ‘the right to body’ of that woman should also be protected and recognized in Indian Jurisprudence.
The argument that the criminalization of marital rape shall give rise to a great number of frivolous litigations; well the answer is very obvious, there is no offence under which there are no frivoulous litigations.
It is in no way contented that men are not victims of sexual violence or crimes, but regarding the general conditions of society and the natural division of physical powers among men and women, women are more prone to be victimized than men.
It is acknowleged that there are many arguments against the criminalization of marital rape, but it is argued that no reason, however reasonable, can overshadow a fundamental right of a woman. Society and law are intimately related and to change ways of society, laws need to be changed, for law creates in every potential offenders mind a deterrence to commit crime and in every potential victim’s mind a presumption of safety and justice.