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CAN MARRIAGE BE TAKEN AS A LICENSE TO RAPE ?



"Let us take a moment to consider this. Essentially, the husband no longer considers the wishes of the wife as that belonging to a fellow human being, and proceeds to violate her. He refuses to acknowledge her saying “no” as her refusing consent for sex, which suggests that he does not consider her will to do (or not do) something to be valuable as his own. Contrast this with how a man would value the will of another man, changing his behaviour towards women who he perceives to be the “property” of another man."


Marriage, in most countries, constitutes a legal partnership between two persons, often involving sexual relations for recreation and procreation. However, sexual intimacy between partners, married or not, is subject to an imperative criterion: consent. There is no legal criterion that can permissibly allow the elimination of consent as a necessary clause for sexual intimacy. Forcing a woman to engage in sexual acts without her consent is rape, and there is no permissible situation where a woman’s consent can be substituted (or be considered unnecessary) in sexual acts.


However, the legal context in India (and 35 other countries) suggests that marital rape is not considered rape. Section 375 of the Indian Penal Code still includes the exception which specifically highlights that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” Despite several Public Interest Litigations (PILs) and court cases wherein the defendant is accused of raping his wife, there has been no move towards criminalising marital rape.


Here, I will argue that marriage cannot be taken as a license to rape, despite the legal framework in India suggesting otherwise. I will examine, from a feminist philosophy perspective, how refusing to recognise a woman’s refusal of consent serves to present them as lesser members of society. Therefore, refusal to recognise marital rape as rape fundamentally goes against the principles of equality enshrined in Article 14 of the Indian Constitution, which leads to the conclusion that marriage cannot be taken as a license to rape.


How does not recognising a woman’s refusal of consent highlight that they are not considered equal members of society? This is done by undermining the very intention that someone refusing consent has in saying the word “no” to refuse sex. Philosopher Rae Langton, in her article Speech Acts and Unspeakable Acts (1993) refers to this intended impact of the usage of “no” in this context as an illocution. An illocution is essentially saying something with a particular force and intention behind it. In the case of sexual intimacy between husband and wife, the wife refusing the husband’s sexual advances constitutes an illocution wherein she says with force that she does not want to have sex.


However, in the case of marital rape, the woman’s refusal to have sex is not respected. This manifests itself in many ways; perhaps the husband does not think the wife is truly withholding consent, or he simply ignores her refusal. Regardless, this situation is a clear instance of rape, since the woman refused consent and her husband proceeded to force her to have sex. Langton refers to this situation as illocutionary disablement, that is, the actions and intentions that a woman has behind saying the word “no” as a refusal are essentially deemed meaningless.


Let us take a moment to consider this. Essentially, the husband no longer considers the wishes of the wife as that belonging to a fellow human being, and proceeds to violate her. He refuses to acknowledge her saying “no” as her refusing consent for sex, which suggests that he does not consider her will to do (or not do) something to be valuable as his own. Contrast this with how a man would value the will of another man, changing his behaviour towards women who he perceives to be the “property” of another man.


This is evident in the outlook of Indian society towards women. Amita Pitre, Lead Specialist in Gender Justice for Oxfam India, highlighted this in an interview with the Quint. “Before she gets married, a woman is her father’s property. After marriage, she belongs to her husband,” she said. “In this conception, woman is seen to have no agency, autonomy or even personhood of her own. It is prescribed that she should not have sex because she is not married and after she is married she may say yes to any kind of sex.”


This inconsideration towards Indian women is encapsulated in the exception to IPC Section 375, which asserts that a husband raping his wife is consensual sex, from some warped perspective. The Supreme Court of India, on many occasions, has refrained from making judgements on the issue of marital rape. Supreme Court advocate Monika Arora, in an article on Times of India, said that criminalising marital rape would “end up destabilising the institution of marriage”, becoming “an easy tool for harassing the husband”. It is deeply concerning, and saddening, that the institution of marriage, which in itself is a social construct, is considered more valuable than a woman’s right to bodily autonomy. Indian society would prefer to preserve the sanctity of marriage as a social construct rather than respect a woman’s refusal to consent to sex with her husband. Marital rape may be legally exempt from persecution, but that does not make it morally permissible.


However, if we do scrutinise the exception against marital rape being recognised as “rape” under Section 375, with reference to the framework of illocutionary disablement I illustrated earlier, we will reach the conclusion that the said exception is in violation of Article 14 of the Indian Constitution, which guarantees equality of all citizens in the eyes of the law. I shall briefly illustrate why this is the case.


Article 14 of the Indian Constitution states that “The State shall not deny any persons…the equal protection of laws within the territory of India.” This prohibits any discrimination on the basis of religion, caste, place of birth and, most importantly, sex.


Let us look again at the situation where the woman refuses consent to have sex with her husband, but is forced to nonetheless. Here, the husband refuses to accept the woman’s intention and her right to bodily autonomy as equal to his own want to have sex. When he proceeds to rape her, he relegates her will to that of a subordinate, rather than an equal. In his mind, his wife is his property, and her eternal consent is enshrined in the marriage contract they both agreed to (mutually or not). The woman is considered to be nothing more than an object.


The exception to marital rape in Section 375 enshrines this outlook on married women in the Indian Penal Code. By explicitly not recognising marital rape as rape, the IPC relegates married women, and women in general, to second-class citizens, suggesting that they are merely the property of their husband or another male relative.


This clause, however, is in direct contravention with Article 14. The woman who is a victim of marital rape is treated as an object, even in the eyes of the law, as her husband can invoke the exception to Article 375 and invalidate her testimony. How can one say that the woman litigating her husband on grounds of marital rape is considered equal to him in the eyes of the law, when her rape is not even acknowledged as rape in a court of law? By allowing the exception to Section 375 to remain, the judicial and legislative system in India continues to violate the basic equality it guarantees to every citizen.


Therefore, I conclude that marriage cannot be taken as a license to rape, both from an ethical and a legal standpoint. Although the formulation of laws that currently exist in India appear to condone treating marital rape as “not rape”, I attempted to show that this clause within the Indian Penal Code is fundamentally in conflict with Article 14 of the Indian Constitution, one of the fundamental rights that each Indian citizen has unconditional legal recourse to.

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