After Nirbhaya

05.18.14

Marital Rape Ruling Highlights India’s Problem With Consent

A Delhi court’s ruling that forced marital intercourse is not considered rape spotlights India’s many blind spots when it comes to consent.

The most common form of rape in India bears little resemblance to the Delhi gang-rape of 2012, which has become a symbol of violence against the country’s women. The 23-year-old student, who was brutally attacked in a bus by six men wielding iron rods, and who later died as a result of horrific internal injuries, was attacked by strangers outside of the home. Most rapes, however, are perpetrated by acquiantances—often husbands—and take place within the confines of the home.

Despite this, in March Indian parliamentarians rejected proposals to criminalize marital rape. The proposals were initially made by the Verma Committee, a three-member panel appointed in the aftermath of the Delhi gang-rape to propose stronger laws to punish heinous acts of sexual violence. In a report delivered to the parliament in March, a panel of lawmakers said the proposed marital rape law “has the potential of destroying the institution of marriage,” adding that “if marital rape is brought under the law, the entire family system will be under great stress.” The protection granted to sexually violent husbands was further solidified this month when a Delhi court ruled that intercourse between a husband and wife “even if forcible, is not rape.”

This gives a carte-blanche to one of India’s largest category of rapists. Two-thirds of married Indian women surveyed by the United Nations Population Fund claimed to have been forced into sex by their husbands. One in five Indian men surveyed by the International Center for Research on Women admitted to forcing their wives into sex.

Worryingly, marital rape is just one of India’s many legal blind-spots, and contradictions, when it comes to consent.

There is, however, a troubling exception to the age of consent: child marriage.

Last year, as part of a series of anti-rape laws that were passed after the Delhi gang-rape, India raised the age of consent from 16 to 18. By doing so, it criminalized consenting sex between teenagers in a country where an increasing number of young people are choosing to have sex before 18. One Delhi judge expressed concern that this would "open the floodgates for the prosecution of boys for offences of rape on the basis of complaints by girls' parents [even if] the girl was a consenting party.”

There is, however, a troubling exception to the age of consent: child marriage. Consent is automatically assumed in this case, provided that the wife is 15 years or older. This leaves child brides, already vulnerable, open to sanctioned marital rape. Meanwhile, innocent, unmarried teenage boys who do seek consent can be penalized irregardless. “All these so-called traditional-value people have no problem when children are forced into marriage by their parents,” Nandita Rao, an attorney, told the Los Angeles Times last year. “But they want to criminalize consensual sex. It’s hypocritical.”

It is not only the consent given by teenagers that falls on deaf ears. The will of adult gay men is similarly ignored. In January, consenting sex between gay men was re-criminalized (it was temporarily allowed), following a controversial Supreme Court ruling that reinstated a colonial era law. Trying to take advantage of the legal loopholes surrounding consent and rape, one judge recently used the anti-sodomy bill—used to target homosexuals—to penalize a husband who had raped his wife anally. Had he only raped her vaginally, however, he would have walked scot-free.

The use of the controversial sodomy law to secure justice for victims of marital rape has caused concern among some. As one commentator put it in FirstPost.com: “the problem of heterosexual marital rape in our culture cannot be dealt with using an archaic law, used mainly against homosexuals.”

In the strange world of consent in India, perhaps the greatest legal oddity is found in cases where women consented to sex on the promise of marriage. If the women were duped, that consent can retroactively be denied. Just a few days ago, a man in Nagpur was arrested “under rape charges” after he “cheated a 30-year-old woman by having physical relationship with her on assurance of marriage.”

In a similar case last year, the Delhi High Court ruled that “If the consent was obtained on a false assurance or promise of marriage, the consent cannot be considered to be full and free and it would be a case of rape.”

What all these examples reveal is that, all too often, the Indian courts are willing to rob consent when it was clearly given and endow it when it was woefully absent. Until the notion of consent is updated, innocents will be charged of rape and the guilty will not receive the punishment they deserve.