By Khushi Sheoran

ABSTRACT

India stands at 122 in the Gender Inequality Index and 135 in the Global Gender Gap Index. What have we done to improve this? What have we done to make our women feel safe inside and outside their homes? How does one measure and establish consent to prove it effectively in a court of law? Violence against women has been an everlasting problem in India and even despite multiple legal safeguards women aren’t safe, especially with their intimate partners. With people having numerous intimate partners during their lives, laws about safeguarding them are necessary. A marriage or a relationship is not an implied consent for sex or sexual activities and violence inflicted by an intimate partner can have long-lasting effects on mental health. This article discusses the need for the curation of laws in the field of intimate partner violence with or without cohabitation, especially considering the new era of dating where consent is highly misunderstood. 

INTRODUCTION

Any behavior in an intimate relationship (married, single, cohabiting) that harms the other person physically, psychologically, or sexually is known as intimate partner violence or IPV. The term “intimate partner violence,” which includes marital rape, date rape and domestic violence, is the main topic of this article. Considering that a solid legislation called the “The Protection Of Women From Domestic Violence Act, 2005” exists for domestic violence, it is one of my lesser concerns due to this article will emphasise marital rape and date rape. Date rape is a newer concept which came into existence with the current generation and it has also been less talked about as compared to marital rape. Even though marital rape is not criminalised, it is considered a crime in a lot of people’s minds but no one shows such recognition for date rape. 

MARITAL RAPE

Marital Rape can be defined as an engagement in sexual activity with one’s spouse without their consent. Consent is the major factor in every kind of sexual offense and I will be talking in detail about it further in this article. After the Nirbhaya Case in 2012, people began to understand the gravity of a crime like rape, more so than before. The Judiciary was forced to make essential changes in the law for rape because earlier rape was only considered a “penis–vaginal act” but now it encompasses a broad range of acts. 

Although there have been numerous court cases and discussions in India regarding this matter, the lack of particular legislation making marital rape a crime is still a serious worry. These are the landmark judgements and advancements regarding the issue of marital rape in India.

1. Union of India v. Independent Thought (2017): The Indian Supreme Court ruled that having intercourse with your spouse between the ages of 15 and 18 is prohibited, regardless of whether you are married or not. This was viewed as a positive step toward recognizing married girls rights, even though it did not address the more serious issue of adult women being raped in marriage.

2. Sree Kumar v. Pearly Karun (2002): In this case, the Kerala High Court decided that even when a husband is still married, he could be charged with rape if he has intercourse with his wife against her choice. 

​​3. State of Karnataka v. Krishnappa (2000): In this case, the Karnataka High Court held that if a husband has sex with his wife when they are separated without her agreement, he may face rape charges. This decision was significant because it recognized that consent is still crucial even in married partnerships. It did not, however, challenge the broader exemption provided by Section 375 of the Indian Penal Code.

It’s necessary to keep in mind that while India does not currently have a full legal reform, the absence of a specific statute that criminalizes marital rape has led to several legal issues. The Indian government and judiciary have been under pressure from advocates and individuals to address this issue and provide victims of marital rape with increased legal protection.

RELATIONSHIP RAPE & DATE RAPE

The definition of relationship rape is very much similar to marital rape with the exception that the individuals are not married to each other but might be dating or in a relationship. With the increasing concept of live-in and long-term committed relationships, the concept of relationship rape is getting friction. There have also been instances of date rape in India with a DU girl filing a case recently. “A 20-year-old girl from DU went on a blind date and was then drugged and raped.” 

Now, although there’s no concrete law in India on date rape or relationship rape but Section 375 of the Indian Penal Code that criminalises rape states that 

“A man is said to commit “rape” if he–

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:

First. Against her will.

Secondly. Without her consent.”  

Many people argue that the above provision can be used for relationship rape or date rape because the sexual activity is “against her will & without her consent.” However, they fail to take into account that establishing consent is very difficult and even if a woman consents to a part of the sexual act doesn’t mean that she consents to sex itself. 

LEGALITY OF THE ISSUE

It is often assumed that women who are raped in marriage have given their consent. But violence is not enough to distinguish between rape and sex, because violence makes women feel afraid and insecure, which makes them consent to sexual activity. She might be even more afraid because she feels like she didn’t satisfy her husband’s wish. The core of criminal law is the distinction between consent and non-consent.

Marital rape is considered a form of domestic violence under the Indian Domestic Violence Act, which also stipulates a shorter jail sentence than non-marital rape. In India, this is the only way to punish marital rape; it is a civil remedy rather than a criminal one. A woman can seek judicial separation from her husband under this Act if she was the victim of marital rape.  

Gender discrimination, in my opinion, is the main factor contributing to sexual violence against women in India. The state has institutionalized gender inequality through the legal mechanism of the marital rape exemption found in IPC Section 375. The government must change social and cultural norms of behavior that support gender stereotypes and take all necessary action to protect its female citizens. Failing to do so is a sign of gender discrimination.

The Indian Constitution safeguards women’s dignity and forbids discrimination based on gender. Women must be protected by the government from the human rights violations brought on by marital rape. Eliminating the IPC Section 375 exception for marital rape would explicitly state this commitment, though maybe not in a way that would be sufficient given the seriousness of the crime and the resistance to admitting it. Violence, especially sexual violence, is widespread, common, and a vital tool in the enslavement of women and their confinement to private areas. The government claims to recognize the violence women experience in married homes, so the continuation of this exception is an anomaly.

Removing the husbands’ exemption from IPC Section 375 was recently rejected by the government, which claimed that doing so would constitute undue interference with the marriage. As a result, it is implied that the laws currently in place, which do not criminalize marital rape, are insufficient to address the issue of marital rape in India because they fail to adequately address gender discrimination.

CASE STUDY: UNITED KINGDOM

To provide an idea about the existing legislation on marital rape, I would like to use the case study of the United Kingdom. According to UK law (as outlined in the Sexual Offences Act 2003), marital rape, also known as spousal rape, is a form of sexual assault. When someone engages in sexual activity against their will or without their spouse’s (or ex-spouse’s) permission, it is considered an offense. One could also classify this sexual assault as a type of domestic violence.

The case of R v. R in 1991 fundamentally altered the situation by making marital rape a recognized legal offence. A man in this case was found guilty of trying to rape his spouse, despite his challenge based on the marital rape exemption. The House of Lords considered the case following multiple appeals, and its members unanimously decided to reverse the common-law rule.

PROVING MARITAL RAPE IN THE UK

“For a person to be found guilty of marital rape, prosecutors must prove:

1. Penetration of the anus, mouth or vagina occurred.
2. The act of penetration was intentional.
3. The plaintiff did not consent to the act of penetration.
4. The defendant did not believe (within reason) that the complainant had consented to the relevant act.

The act of marital rape does not only apply to people who are married but it can also be committed by those who cohabit as spouses but are not legally married. Women cannot be charged with committing rape because the offence requires penile penetration. That said, if a woman commits a sexual act without the consent of her spouse, or ex-spouse, she is committing a sexual offense and can be charged with:

1. Sexual coercion
2. Causing a person to engage in sexual activity without consent
3. Sexual assault

Sentences can range from 4 to 19 years, depending on the specifics of the case, as well as mitigating and aggravating factors, such as having no previous convictions, previous good character and remorse. Life imprisonment can be handed out if the situation demands.”

THE CONCEPT OF “CONSENT”

Mathew Hale, Chief Justice, published The History of the Pleas of the Crown in 1736, which laid the foundation for his Implied Consent Theory. It stated, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” This theory not only found its way into Britain’s common law system but also into the legal frameworks of all of its colonies.

An additional common law principle that supports the implied consent theory is the Doctrine of Coverture. This theory held that a woman’s legal rights were absorbed by her husband upon marriage. The legal fiction that the husband and wife were the same gave rise to this doctrine. Up until the feminist movement’s surge in the middle of the 19th century, the Doctrine of Coverture dominated English society. It was thought to be oppressive since it prevented a woman from using her financial and legal rights.

CONCLUSION

In addition to legislative reform, combating intimate partner violence needs a multifaceted strategy that includes awareness-raising, education, and cultural changes. India, as a progressive nation, must ensure that its legal frameworks uphold international standards and recognize the significance of consent in various forms of intimate partnerships. Even though women are adored in India as goddesses, crimes against them indicate otherwise and it is high time that we continue to support our cultural traditions of respecting women. 

Author’s Bio: 

Khushi Sheoran is a law student at Jindal Global Law School. She is a public speaker, environmentalist and international relations enthusiast. Her areas of interest include International Law, Gender & Sexuality, Corporate Law and ESG. 

Image Source: YouTube (Intimate Partner Violence)