Marriage is an institution that can no longer be called ‘sacred’ or ‘sacrosanct’ like it was termed and considered to be in the past. Over time there have been prevalent provisions given to individuals entering into a marital relationship such as divorce and judicial separation support which further prove to us that the basic sanctity, thought of in marriage by our ancestors does not hold much importance. Marriage is a partnership between two individuals with reasonable marital privileges for both spouses. Saying this, reasonable expectations or privileges cannot be equivalent or equated with consent or willingness in any situations that may arise. The wife in her marriage would expect to receive love and affection from her husband who is expected to safeguard her interests. It would be of great indignity if the law burdens the woman by denying her the right to call an act of rape as rape and her right to prosecute for violation of her bodily integrity, privacy and dignity at the hands of her husband.[1] This article is an opinion focusing on the fact that forced sexual intercourse in a marriage is far from preserving the institution of marriage but primarily justifies what a marriage ought not be.
KEYWORDS:
- Marriage
- Marital Rape Exception
- Consent
- Sexual Intercourse
- Rape
An opinion can only be formed on a very essential topic in today’s era, ‘Marital Rape’ when one has completely understood the concept of consent, or so I believe. Consent according to me can be described in the simplest words as ‘a person free from coercion expressing free will.’ I believe that between two individuals keeping aside the form of relationship they share with each other, when the phrase mentioned above seems to be violated, they could be held accountable for it. Consent can have a very persistent role in any relationship shared between two individuals.
As long as we are discussing the concept of consent and its existence between individuals, the same concept can be applied to two individuals being part of wedlock. It could be understood that the relationship that they would be sharing would be a married one and that they would be legally and formally recognized as a union. Any kind of physical, mental or sexual abuse or violence in this union would be considered as domestic violence and hence we could arrive at a conclusion that sexual intercourse without the consent of the women even in the union i.e., marriage, could not only be considered under domestic violence but be termed as rape. The very fact that the husband can be prosecuted for several other offenses he commits in a marriage additionally suggests that the striking down of the Marital Rape Exception will not be destroying the institution of marriage.
It violates the woman’s right to:
- equality an equal status under the law which is conferred on all human beings
- dignity and bodily integrity
- personal and sexual autonomy
- bodily and decisional privacy
- reproductive choices that is right to procreate
This would further signify that the consent of the wife in a marriage is going to hold as much importance so much so that it could also be considered much more important than the society’s belief of an institution of a marriage that is to consummate where social and cultural aspects are involved.
As argued before in the case of Joseph Shine v. Union Of India, the court has already previously decided and mentioned in its judgment that the fact is that it is no longer assumed that the wife surrenders her personhood and rights when she enters into a marital relationship.[2][3] Keeping this in mind it would be foolish for me to assume that the same statement isn’t applicable to a much more serious issue at hand when a women’s consent does not hold any relevance and the dignity of a woman is compromised just because she in a marital relationship. It cannot just be assumed that marriage would be acting as implied irrevocable consent for sexual relations between the husband and the wife and that the marriage would not be holding any importance without it.
I believe that if a women’s fundamental rights can be ignored and the very evident fact that she would be giving up her consent for all the sexual relations she would be entering into, in her marriage is going to be the main reason for the entire family system to work then it would be absurd to even argue further.
The evidentiary support looked for in the cases of rape when marriage is absent, by the court are as follows:
- firstly, was it against her will
- secondly, whether it was without her consent.
The marks of struggle on the rape victim’s body can also further suggest that sexual intercourse has been done on her and without her consent because no rape can be committed unless the victim is under full control of the rapist. Hence, to save her respect and modesty she tries to put every sort of struggle.
Saying this, it quashes the argument made stating that the bruises and hurt marks on a married women’s body cannot be considered as evidence giving reasoning that it can also be considered as displays of mere passion when in other rape cases the rape victim’s bruises have been considered as evidentiary support and not simply assumed to be displays of mere passion.
When the argument put forward that states that if the Marital Rape Exception is taken down there would have to be a third party as an eye witness to testify for the same.
When we shift our angles to the system of abortion that works in India, Indian laws say that a woman can only be eligible for abortion if the pregnancy is result of incest, rape, the foetus has major deformations or the continuation of the pregnancy can cause the grave physical and mental injuries to the health of the woman.[4] I believe that when a woman out of wedlock is a rape victim she is granted the right to abort the fetus but when a wife is raped by her husband she is denied the right to abortion because of the existence of the Marital Rape exception.
According to me, in a rape case where the victim is raped in isolation, where there wasn’t an eye-witness to testify for whether it was consensual or not, the court even in these cases has determined the verdict. The same can be applied to a married woman. The core ingredient of rape is the lack of consent which is the primary factor considered by law irrespective of whether it was inside or outside a marriage. The exception is discriminative towards married women because sexual offense and violence does not hold a place in the society and the institution of marriage cannot justify it or be held as an exception.[5] It can in no way be that procreation is the only purpose of marital intercourse.
To deduce ahead, the argument that suggests that the husband would be prosecuted for other offenses he could be committing such as assault or domestic violence, if this submission is accepted, then it would be playing down and minimizing an act which when committed results in the grave and irreversible psychological and physical consequences for the victim. Striking down the Marital Rape Exception will not create a new type of offence but would form a particular category of offenders among the existing set of offenders who presently are not subjected to the rigor of rape law. In case we consider that if the Marital Rape Exception is struck down and the rape committed by the husband on his wife is criminalized by the law, even then the courts will have to continue their procedure to perform and act on the same role of appraising evidence. The act of non-consensual sexual intercourse or rape is abhorrent and, in any context, violates the fundamental right to life and liberty provided by Article 21. To deny a married woman the ability to name a rape as a rape if committed by her husband would go to the heart of her constitutionally granted the right to life and liberty. I believe that every woman including a sex worker is entitled to decline consent and prosecute for rape. No amount of verbal jugglery, deceptiveness and classification can change the reality that rape is rape and a rapist is a