Is Consent an Alien Concept to India?
The definition of rape, as per Section 375 of the Indian Penal Code, includes all forms of sexual assault, as well as non-consensual intercourse. However, these specifications would be deemed invalid due to Exception 2, which states that sexual intercourse by a man with his own wife- the wife not being under fifteen years of age - is not rape.
India is one of the 32 countries in the world which has not criminalised marital rape yet. Despite being challenged numerous times in court, the marital exception stayed, even after the 2013 Verma Committee recommended removing the exception.
Various statistical studies show the risk married women are at, then, what is stopping our nation from protecting the most basic of human rights?
What is Consent?
Consent is defined as giving permission or having an agreement that is applicable to both parties in the same manner, where both parties are fully aware of all implications of the proposal. Consent, under section 375, is regarded as invalid if, a woman is pressured to give consent (under fear of death or harm of self or any person associated to her), or if she is underage, if she is lied to, and if she is unable to understand the conditions under which she consents.
Unfortunately, the law claims that consent does not need to be valid for a husband and wife to have sexual intercourse. To this day, marriage is viewed as an institution that requires a woman to have sexual intercourse with her husband, whether they are willing to or not.
History of Anti Rape Laws
The provisions of Section 375 as well as related laws, such as age of consent and age of marriage, date back to the colonial era. In a period where child marriages were common, Indian social reformers worked to put an end to the practice, after enlisting help from the British government. However, the domain of personal laws concerning marriages, property, and inheritance was left alone by the British, to prevent backlash from local religious leaders.
After much clamour, the Child Marriage Restraint Act (1929), set the age of marriage for girls at 14 and boys at 18. The Indian Penal Code (IPC) set an exception to sexual activity within marriage, at 13 years of age. After much debate, through the years, India has raised the age of consent to 18 and age of marriage to 18 for girls and 21 for boys.
Yet, the pattern of setting an exception to marital rape has continued and under the law, rape is legal within a marriage as long as the bride is over 15 years of age.
Is it not odd that a woman must be 18 for consensual sexual activity, while a 15-year-old girl may be assaulted and her abuser not only gets to walk free, but she has to spend her life living with them?
Society and Deep-rooted Misogyny
The solution to passing the bill requires addressing the underlying issues that affect the mindset of our society. There are many who still believe that rape is a matter of honour; with victims often being asked to consider marrying their rapist - an easy way out for them, with no punishment.
Rampant misogyny and victim blaming has pushed the masses to view rape as an attack on a woman’s purity. Women have been objectified to the extent that assault on a woman is viewed as an attack on her husband, rather than herself. If the woman was assaulted by her husband, it could not be considered rape, since it is considered a wife’s duty to act according to her husband’s wishes.
In a community where women face criticism for the way they dress, the way they act, and almost every other action—wanting consensual sex is almost considered blasphemous. The ideal Indian woman is modest and innocent, and hence, would not consent to sexual intercourse unless initiated by a man. Such a primitive mindset upholds a vicious cycle, forcing wrong ideas of marriage, respect and love on the younger generation.
Debunking Myths
The biggest argument against criminalising marital sex is—how exactly will these cases be proven ? Men’s rights activists claim that false reports are prevalent, especially in cases like this, where there’s almost no evidence except for individual accounts of the situation.
However, the anguish that victims of marital rape go through cannot be overlooked to protect men from false reports. The number of unreported cases far outweigh the number of false cases. False reports create bigger problems, with victims afraid to come forward due to apprehensions of being dismissed as untrue, with no evidence, but word of mouth.
Another important point to note is that, by the Constitution of India, sexual assault is defined as exploitation of a woman by a man. None of the provisions of Section 375 are applicable for a male victim of sexual abuse, as long as he is over 15 years of age. This issue again stems from the deep-rooted patriarchal ideas in society, that a male cannot be taken advantage of.
Projecting any issue as a male-versus-female debate is extremely damaging and a toxic way of viewing the actual situation. Anti-rape laws not being gender-neutral poses a huge detriment to progress in society. Moreover, not criminalising marital rape only pushes the age old and unhealthy notion that consent is not an essential aspect in marriage.
Need of the Hour
Despite implementing almost all reforms suggested by the Justice Verma committee, the government steadfastly rejected removal of the exception making marital rape legal. For reasons like “putting the family system under stress”, the issue has always been put off despite legal intervention and suggestions from academics in favour of criminalising marital rape.
Some consider it a political issue, wherein the union government does not wish to invite the wrath of men across the country, who undeniably form the largest voter base in the nation. Days after the hearing of the petition, many took to social media to express dissent and dissatisfaction. Young men claimed they would go on a “marriage strike” if the bill were to be passed. Some expressed fear that false cases would increase, while others stated that a marriage would be pointless if this law came into existence.
This leads to the question—for how much longer is our society going to deny the most basic of human rights and autonomy to all women? Any progress at all, is progress in the right direction. Opposition to this bill will only further “weaken family systems”. For how much longer are we going to normalise sexual assault under the farce of a loving marriage?
Kavyaa Kannan
Sources: HT, The Hindu, Indian Express, IndiaToday, BBC
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