Wednesday, 16 May 2018

The Curious Case of the (Married) Woman's Consent


A woman’s consent is a very contentious issue. Everybody has a different opinion on how consent is defined – does a ‘no’ always mean no or can it also mean ‘yes’; how loud or explicit does it have to be; does it HAVE to be verbal, etc. In the case of married women however, there is no debate on the nuances of consent, because no such concept applies to them. There two provisions in the Indian Penal Code that take a married woman’s consent and toss it into the bin – Section 375 (not criminalizing marital rape) and Section 497 (criminalizing adultery). In case of the former, the law does not deem it appropriate to penalize a husband for forcing himself on his non-consenting wife. In case of the latter, the law deems it appropriate for the husband to disregard her exercise of consent (to have intercourse with another man), and penalize that other man.

Dis-regard of non-consent:

Section 375 of the IPC, which defines rape, provides that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” The Supreme Court has recently read this down to mean below of the age of 18. Essentially, the act of committing “rape” will depend on 3 factors – age, marital status and consent. An act constitutes rape if:
  • The woman is unmarried and above the age of 18 and there is no consent.
  • The woman is unmarried and below the age of 18, irrespective of consent.
  • The woman is married and below the age of 18 years, irrespective of consent.
The provision describes graphic acts of rape, including penetration of the penis/any other part of the body/any object into the vagina, mouth, urethra or anus of a woman. These very acts do not constitute rape if the woman, above the age of 18, is married and the perpetrator of the acts is her husband, even if such acts are done by him:
  • Against her will.
  • Without her consent.
  • With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
  • With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication … she is unable to understand the nature and consequences of that to which she gives consent.
  • When she is unable to communicate consent.
The remedies available to the married woman are to seek a divorce, initiate proceedings u/s 498A(a) (punishment for which is only 3 years, as opposed to punishment of 7 years for the offence of rape) or approach the appropriate authorities under the Protection of Women from Domestic Violence Act, 2005.

Disregard of consent:

The text of Section 497 of the IPC, which defines adultery, reads as follows:

“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall be punishable as an abettor.”

The wife, despite being above 18, is not free to exercise her consent. She must have intercourse with only her husband. If she has intercourse with someone else, her consent is overridden by her husband, unless her husband has ‘consented’ for this to happen. Did the lawmakers fail to see the irony here? Of course, the wife cannot override her husband’s consent if he has intercourse with another woman; she can only make his commission of adultery a ground to seek divorce. Yes, the wife herself is not punished if she commits adultery, but in my opinion, statutory disregard of her consent itself amounts to a punishment.

If the justification for this law is protecting the sanctity of marriage, there is an obvious lacuna staring the reader in the face. Some have also attempted to justify this law as a ‘protection’ for women. Except, if one ‘man’ decides to prosecute another ‘man’, I fail to see how this law protects women.

The married woman’s consent needs statutory recognition:

Does the law imply that the concept of consent does not apply to married women? They virtually appear to be treated as the property of the husband. Intercourse may be had only with the husband, at his will. There is nothing in the law to suggest otherwise.

‘Don’t get married then’ is the common refrain one hears, when trying to apply the same standards of consent to married women, as applicable to unmarried women; if the husband cannot have intercourse with his wife, what is the point of marriage?

Now, women may actually choose not to get married if their choices (right from removing bodily hair to having live-in relationships) are respected instead of being judged, questioned and opposed by our patriarchal society at large, every step of the way. If women do choose to get married, individual opinions on what makes a marriage worthwhile are not relevant. That is up to each individual to decide for themselves. However, if you, as a man, are stuck in a marriage where your wife does not consent to have intercourse with you, nothing stops ‘you’ from seeking a divorce on that ground. Don’t put that burden on your wife. Instead of forcing her into doing something she doesn’t want to do (i.e. instead of committing an otherwise criminal act), husbands may explore the idea of initiating the divorce themselves if they are that unhappy with their marriage and non-consenting wife, who may have choose to have intercourse with another man instead.

The 9-Judge Bench of the Supreme Court has upheld privacy as being a fundamental right, emphasizing on the importance of consent and autonomy of an individual. Justice Chandrachud categorically observes that “…The sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well being. The pursuit of happiness is founded upon autonomy and dignity.” The constitutional validity of Section 497 is also challenged before the Supreme Court.

Our lawmakers should take heed and give the consent of married women the wholesome statutory recognition it deserves.

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