The Hindu Editorial Vocabulary– May 13, 2022; Day 288

The importance of consent (agreement): On marital rape

The institution of marriage cannot be allowed to sanction (to authorize, approve, or allow) force and violence

A split verdict (the award of a fight on a majority verdict of the judges as opposed to a unanimous decision) in the Delhi High Court on the question of criminalising marital rape has reignited (to make something such as a disagreement or worry that was disappearing grow stronger) the controversy over legal protection for disregard of consent for sex within marriage. On Wednesday, while Justice Rajiv Shakdher, who headed the Bench, struck down (Declare null and void; make ineffective) as unconstitutional the exception to Section 375 of the IPC, which says that intercourse by a man with his wife aged 18 or above is not rape even if it is without her consent, Justice C. Hari Shankar rejected the plea to criminalise marital rape pointing out that any change in the law has to be carried out by the legislature since it requires consideration of social, cultural and legal aspects. With the judges differing on key points such as difficulty in getting evidence, the importance of consent, whether the state’s concerns about safeguarding (Make safe) the institution of marriage were valid, and if other laws against sexual violence protected married women, the issues involved may have to be ultimately adjudicated (come to a final conclusion) with the help of a third judge or a larger Bench of the High Court or the Supreme Court. The Union government has been opposing the removal of the marital rape exception. In 2016, it had rejected the concept of marital rape, saying it “cannot be applied to the Indian context” due to various reasons, not least because of the “mindset of society to treat marriage as a sacrament (something regarded as having a sacred character or mysterious meaning)”. However, in the final hearing, the Union government did not take a stand (to express one’s opinion) on the issue.

Justice Shakdher’s opinion goes to the heart of the matter (the most important aspect), inasmuch (in such a manner) as it treats the absence of consent as the core ingredient of rape. He says what is defined as rape in law should be labelled as such, irrespective of whether it occurs within or outside marriage. He finds that the marital exception violates equality before law, as well as deprives (Keep from having) women of the right to trigger a prosecution for non-consensual (not agreed to by one or more of the people involved) sex. Besides, it also discriminates (Treat differently on the basis of factors such as sex) among women based on their marital status and robs them of sexual agency and autonomy (Personal independence). In contrast, Justice Hari Shankar’s opinion, somewhat disconcertingly (In a disturbing or embarrassing manner), de-emphasises the element of consent and lays much store by the importance of preserving the institution of marriage to such an extent that he holds that any legislation that keeps rape out of a marital relationship “is immune (not affected by something) to interference”. If marriage is regarded as a partnership between equals, an exception in a 162-year-old law should have had no place. While there are other laws governing civil relationships that legitimise conjugal (Of or relating to marriage or to the relationship between a wife and husband) expectations, these cannot be seen as giving a free pass for violence within marriage, which is essentially what sex without consent is. Whether the legislative route is more appropriate in making marital rape a criminal offence is a matter of detail. What is important is that sexual violence has no place in society, and the institution of marriage is no exception.

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