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Marriage, Sex and Consent : The Split Verdict By Delhi High Court In Marital Rape Case

By Adv. Avani Bansal

Nothing that is ‘imposed’, survives for too long. Marriage as an institution continues to exist, around the world, because a large majority of people ‘choose’ to opt for it. But it is also true that world over, many people are now questioning the institution of marriage and opting instead to remain life-long companions without the shackles or protection of the law.

In India, while many young men and women are choosing to get married late in their lives and some opting for live-in relationships as well, there is still a large majority of boys and girls, whose families do not leave them with an effective choice as regards marriage. The law steps in aiding this choice by providing an entire ecosystem – a web of laws to ensure protection of the rights of married partners, especially for women.

But the exception for ‘marital rape’ as per Section 375 of the Indian Penal Code (IPC), 1860 creates a logical bind – it excludes non-consensual sexual intercourse between married partners from the definition of rape. The recent split verdict from a division bench of the Delhi High Court in the RIT Foundation v. Union of India case, has once again brought to light an age old debate in India as regards the role of consent and the recognition of the agency of women in marriage. It throws open a bigger question – does allowing for marital rape actually protect the institution of marriage or does it harm it?

While Justice Rajiv Shakdher held that the marital rape exception under Section 375 IPC is violative of Article 14, 15, 19 (1) (a) and 21 of the Constitution and should be struck down; Justice Hari Shankar dissented with him and held that non-consensual sex within marriage cannot be termed as rape.

The fear writ large in Justice Hari Shankar’s legal view that – ‘if non-consensual sex by a husband is classified as ‘rape’, it will affect the very institution of marriage’, needs cross examination. The legal opinion of judges expressed in lengthy judgments need to be deconstructed to see what part of their thinking is visible on the face of it, but what is the underlying fear that a judge may or may not spell, but shapes his thinking on a particular issue – like the hidden part of an iceberg.

This line of reasoning that – marriages are so sacred, that when two people decide to get married, they somehow are signing for a lifetime of sex, and that spouses need not obtain consent, every single time, they are about to engage in a sexual act, is fraught with challenges.

First, it is important to see the role of law in the institution of marriage for what it is i.e. a web of protection for facilitating entry and exit into the institution. Law cannot by itself grant ‘marriage’ some holy veil, that the concept of marriage itself does not have. By allowing for violence in any shape or form, within marriage, by the instrument of law, amounts to over-interference by the law in an institution.

Secondly, the institution of marriage , especially as viewed in India, is a mix of a sacrament and a contract. In India, while there are different personal laws governing marriage, the dominant cultural view is that marriage is not a pure contract. Nor is it an institution to satisfy one’s lust. It is seen as a spiritual union of two people. Therefore allowing for non-consensual and forced sex within marriage tantamounts to eroding away at the very foundation of this spiritual union/institution. So the logic offered by Justice Hari Shankar, that criminalising marital rape will somehow protect the institution of marriage, stands falsified by his own logic. If marriage is a sacred institution – there cannot be any space for violence in it. If you allow for marital rape to be legal – than marriage cannot be held as a sacred institution.

Thirdly, marriage requires two adults who are equal partners. Allowing any room for non-consensual sex, takes away the agency of the woman within the relationship. To think that the husband can impose himself on his own wife, suggests that somehow the wife is less of a woman, less than the whole, than she was before marriage. Such a view of marriage is more likely to dent how the coming generations view marriage. Also, law cannot give or take away any agency from both the partners, even in the name of marriage. Laws are meant to step in when one partner in any way, violates the agency of another partner – not to automatically erode away the agency of the wife, as soon as she decides to get married.


Fourthly, we really need to have an open conversation about how do we view ‘sex’ as a society. Will our laws protect non-consensual sex in any case/situation? Should they? Sex has to be based on the mutual consent of two adults – marriage or no marriage. Marriage is neither for sex nor equivalent to it. Marriage is a promise to take care of the well-being of each other, to be there for each other in thick and thin. How does this even sound logical – “you married me, so you got to have sex with me, every time, I want it, whether or not you want it.” This logic is contrary to everything that’s sacred about marriage.

Fifthly, let us unwrap the concept of ‘Consent’ as it has wide ramifications than just the marital rape debate in India. One question that’s often asked is – “do we need to understand consent based on cultural context?” So, is it logical to say that while in America, a woman saying ‘no’ should be understood as such, in India, somehow, even when a woman is saying ‘no’, it can be understood as ‘yes’? This suggestive argument that somehow – thanks to the cultural context, even a woman’s no is not an actual no, lays the foundation of perpetration of major crimes against women. By treating ‘consent’ as having different shades of grey, we not only reduce the agency of women, but we impliedly attempt to veil the refusal of men to take ‘no’ for an answer by giving a cultural justification for the same.

India is certainly not alone in debating the definition of consent. We are in the midst of a global movement, that’s pushing for a legal framework and universal definition of ‘consent’. The Council Of Europe Convention On Preventing And Combating Violence Against Women And Domestic Violence, better known as the Istanbul Convention adopted in May, 2011, was signed by 45 countries and the European Union. States who have ratified the Convention are required as per Article 36 of the Convention to declare as a crime – “sexual violence, including rape, explicitly covering all engagement in non-consensual acts of a sexual nature with a person.” Similarly in 2019, the Platform of 7 independent United Nations and regional expert mechanisms on violence against women jointly called upon all States and relevant stakeholders worldwide to act against rape as a ‘form of gender based violence and a human rights violation, and, to ensure that the definition of rape is based on the absence of consent, in line with international standards.

While we now wait to see how the Supreme Court will weigh in on this issue in Appeal, let us hope that India will not be left behind in ensuring that Women remain equal partners and whole individuals in Marriage, Sex and Consent. Clearly, while allowing marital rape to be criminalised, we will be saving the institution of marriage, instead of eroding it, assuming that the institution needs saving at all, which ofcourse is an arguable proposition for another day.

(Avani Bansal is a practicing Advocate in the Supreme Court and can be reached at advocateavanibansal@gmail.com’; Tweet @bansalavani)

First published here :
https://www.outlookindia.com/national/sex-in-marriage-criminalising-marital-rape-will-save-institution-of-marriage-magazine-202759

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