India’s take on Marriage in Sexual Relations

 India’s take on Marriage in Sexual Relations

-Mishi Aggarwal
3rd Year, BA LLB
Christ, Bangalore

Marriage in India is a sacred bond of holy matrimony. Marriage as an institution is preserved unabashedly and occasionally even blindly followed. When it comes to consummation, conservatives tend to have stringent and uncompromising beliefs, no matter how wrong they might really be. The traditional orthodox beliefs around sexual intercourse revolve In and around this bound of holy matrimony. In India, the belief that sex has to happen only post marriage is rather prevalent and dominant. Only married couples can rightfully have sex is a fanatical perspective adopted by the whole of Indian society. However, the notion of rapes i.e. non consensual penetration, forced compulsive sexual intercourse cease to exist in the case of married couples. The supreme court recently announced its decision to declare sex on pretext of marriage as rape. As sensitive as the word rape is, it is just as severe and grave of a problem in the nation. India as a nation has always taught its people to respect women, to give them the privilege of goddesses. But as one might notice, All the goddesses so vibrantly and vividly celebrated in India are given the titles of Mothers, implying that even goddesses must be married and a mother to gain the respect and admiration of even their followers. Often marriage is considered as a blessed bond, and marriage as an institution has repeatedly throughout history emphasised on the unescapable bond that it creates with its coming. This bond acts as a boundary, as a social construct that governs major decision making of intellectuals, diplomats and has placed a profound impact on even the constitution makers of the country. Rape as a crime on the outside gives the impression of having no excuses, limitations or clauses in its approach. Rape is dominantly defined to be non-consensual, forceful or done when either of the party is unconscious to give consent. Still when it comes to India, Rape has clauses underneath it which determine the amount of punishment a rapist deserves or whether the rape can actually be qualified as rape. One of the major obstructions to this crime is the aspect of marriage.
When it comes to sex on pretext of marriage, there are two aspects that this research paper achieves to consider and contemplate. First being the fact that the intercourse in such a case scenario is consensual in nature, even though the consent is grounded on a basis of deceit and treachery. Second, it results in the assumption that sex after marriage is considered to be the moral high way, and any other way is judged as immoral, insignificant and frowned upon.
Key words: Matrimony, non consensual, Rape, Pretext of marriage.
1. Introduction
Rape literally means “a forcible seizure”. It means the ravishment of women against her will or without her consent or with her consent obtained by force, fear or fraud or the carnal knowledge of a women by force against her will.[1]
It can be hence be understood as an act that is opposed to the will of women but what the judiciary has failed to establish that Rape is Opposing the will of women, irrespective of whether they are married or not. When the elements of Rape are fulfilled but is still not termed under the category of rape, it is because it is done by a husband on his wife, which is known as Marital rape which has no recognition in Indian legal system. Marital Rape in India is every so often not even categorised as punitive Rape. It is found that in India Marriage surpasses the facet of consent; that is a married man might not even need to seek consent to have sex with a woman who is legally bound to be his wife. The major elements of marital rape include the mental agony of being raped, the trauma of being victimised by her own husband and helplessness of being quiet and unforgettable scars of these incidents. People in India are free from crimes committed in the streets but the women have not been safe from crimes inside their own home which gets unnoticed by anyone. Indiana University Press, 1990 had reported that, more than 1 in every 7 women who have been married has been raped in their marriageAccording to United Nation population fund more than two-thirds of Marital women aged between 15-50 in India have been subjected to forced sex, beaten, tortured along with a demand for dowry.
1.1 Breakdown of Societal constructs
Virginity of a girl is an implied requirement for marriage in Indian Society since she is not pure and is often referred to be of a loose character if she has Sexual relations before marriage. It is considered key to a happy marriage. As soon as the marriage takes place, the Girl no longer has a right to refuse to have sexual relations. It is s
o because it is common belief that Marriage is a Pure relationship and so the family institution has to be preserved
by negating complaints of rape by wife against her husband. These societal standards affect woman  in ways that are considered as basic hurdles of married life. They are made to believe that since such problems are so commonly faced by women in marital relationship, living with them is how it is supposed to work. The humiliation faced by the women during this deceiving process is greater than it appears to be since their married woman aren’t protected under the provisions of Article 375 of the Indian Penal Code, 1960.  The Consent that Article 375 mentions is implied in case of a married woman. Irrespective of whether she wants or does not want, it is deemed to be consensual owing to the fact that the woman is married to the man.
1.2 Breakdown of Legislature
With the Criminal Amendment Act of 2013[2] brought forth the invariably needed amendments to the Criminal laws for protection of woman and thus making them stronger than ever. Inclusion of specific sexual harassment laws under section 354 A, B, C, D have helped the cause, after the Justice J.S.Verma Report, 2013[3] suggested the said changes in laws. The Verma Committee recommends two new sections on gang rape as part of Section 376 (punishment for rape) of the Indian Penal Code. The language proposed is gender neutral, unlike the already existing one used in Section 375, which defines rape as a crime that can only be perpetrated on a woman. The changes were enforced and incorporated by the courts in the subsequent cases that were filed and have been able to provide justice better after henceforth.
2. Marital Rape
Rape can be understood as an act that is opposed to the will of women but what the judiciary has failed to establish that Rape is Opposing the will of women, irrespective of whether they are married or not.
Marital rape has been one of the longest running bones of social contention in India’s socio-religious narrative.In a country, which is still bound by its static regressive orthodox belief
s progressive social dynamism seems a utopian paradise. Realisation that rape occurs even after marriage and that its terminology ‘
marital rape’ is still unintelligible to many. If rape is a violation of consent, then does marriage imply dissolution of consent on the part of the woman? Or, does consent for marriage imply a woman’s consent to violate her sanctity?
As of now, the Indian laws consider marital rape punishable only in two circumstances namely, first, when the wife is below the age of 15 and second, when a man rapes his wife who has been living separately from him. The maximum punishment that a man can be given is upto three years in prison for having unnatural and forced sex with his wife. Do the legal code and the legislative powers view it as a minor offence? The fact that India hasn’t criminalised marital rape even when more people seem to be getting better access to education, high paying jobs, good homes, etc. some men still consider women as objects who can be coerced anytime into sex as per their moods and wishes, is worth contesting, especially when more than 100 countries have criminalised it.
Under the Protection of Women from Domestic Violence Act (2005), marital rape cases are taken into consideration when it is about the life of the woman. Now, a scenario where a woman had a complete objection to her man forcing her is not liable for any consideration, under the available laws for the protection of women, which is a grotesque reality. A woman’s opinions, choices aren’t respected and she is supposed to bear the brunt of abuse, until she has made her peace with our social reality.
3. Ongoing Judicial Structuring of Consent
In India, The Indian Penal Code reads as “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.[4]
What this provision fails to understand is the trauma that a woman goes through to cope up with these set standards. In order to uphold the purity of marital relationship, the individuality of a woman is sidelined. The concept of Consent fades away merely because the act that is otherwise punishable under law is done by a a husband to his wife. Section 375 of Indian Penal Code defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the women is in possession of her senses and, therefore, capable of consenting but the act is done against her will and the second where it is done without her consent; the third, fourth and fifth when there is consent but it is not such a consent as excuses the offender, because it is obtained by putting her, or any person in whom she is interested, in fear of death or of hurt.[5] Section 376 of the Indian Penal Code defines the punishment for rape.[6] Section 90 of the Indian Penal Code defines “Consent known to be given under fear or misconception”[7] which defines what is not consent than what is consent.
Apart from “Consent” being defined and interpreted in Indian legal system, there still prevails some arbitrariness in its application in cases wherein it is affected by other factors. A consent primarily obtained on the basis of a promise that doesnot even hold true has no codified remedy or punishment but has been interpreted by the Judiciary in various cases.
In the case of Deepak Gulati Vs State of Haryana[8], the Supreme Court held that Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
The court here gave recognition to the intention that a person might have while making a promise. The court termed an intercourse that derives its consent from a false promise as Rape since the consent that is given is considered to have been given after considering all the pros and cons of that act which in the given scenario doesnot comply.
In the case of Ritesh v. State of Maharashtra[9], it was held that Consent obtained under the promise of marriage is not a free consent. This case takes notice of the State of U.P. v. Naushad[10], wherein the honourable Supreme Court held there being absence of free consent in such matters. This implies that if a girl alleges that she was forced into a physical relationship after a promise for marriage, then there is clearly an absence of free consent to such relationship and thus should be considered rape under Section 375 of the Indian Penal Code and the man should be booked under Section 376 of the Indian Penal Code since the consent was given based on a premise that was not fulfilled.
Somewhere, This idea of referring sex on pretext of marriage as equivalent to Rape promotes the notion of non-criminalisation of Marital Rape. Because If promise to marry is considered as a valid ground for having intercourse then it becomes right after marriage to have intercourse with the spouse because of the marital relationship.
The courts by interpreting Sex on pretext of marriage as a form of Rape are upholding the preconceived notion of Marriage as a licence to have physical relations with the spouse.
In Yedla Srinivasa Rao Vs. State of A. P[11], The Court held that Since the consent that the girl gave was based on the man’s promise to marry her afterwards, the consent was not based on free will. This means that the reason behind the girl giving her consent was based on a promise that was not made w
ith the intention of being fulfilled. If there wouldn’t have been a promise to marry, the girl would not have consented and thus it was held to be a consent that was influenced by other factors.
Section 90 of the Penal Code says that if the consent has been given under fear of injury or a misconception of fact, such consent obtained, cannot e construed to be a valid consent. This case highlights how there maybe a case when the promise was made with ill intentions but it can not be true in every case. The courts have at different times given different interpretations as to how these promises are to be treated when there’s a question of rape involved. There has been no clear differentiation between making a false promise and breach of the promise made. It is crucial to differentiate the two because there is a clear difference of intention in making the promise.  It would not be wrong to say that many a times, intercourse based on a promise to marry which is left unfulfilled has been treated as rape, based on the reasoning that the consent present was not based on the free will of the women. This may hold true for even those cases wherein the promise was made with an intention to be fulfilled but for some reasons, could not be.
In Anurag soni vs state of Chattisgarh[12], the argument put forth by the was that regardless of whether we consider that the charged had made a promise to the prosecutrix and still didn’t wed her, at that point additionally he has merely committed an offence of “Break of Promise” and consequently ought not be punished under Section 376 of the IPC.
The court, in this case, has given a new dimension to the word “consent”. The Supreme Court in this case, outrightly held that making a false promise of marriage to have a sexual relationship would amount to rape. So, if a girl has consented to have sexual intercourse on the pretext of marriage, which turns out to be fraud, then the consent so obtained would not be considered as a valid consent considering Section 90 of IPC.
Making a promise without any intention to fulfil it can be undisputedly termed as cheating because even though the consent the affected by external factors, there is a woman’s consent at the time of intercourse. Placing cheating at the same level as rape can be unfair because the person maybe charged for breach of trust for not fulfilling the promise to marry but cannot be said to have done the act against the will of the woman. Thus, reducing rape to the same level as cheating or aggravating cheating to the same level as rape clearly reduces the severity of rape.
4. Conclusion
It would hence be safe to say that despite of so many existing legislations on sexual offences against women, Indian laws have somewhere failed to provide adequate protection to women in certain circumstances as the women are still treated as the property of their husbands and there is no remedy available to her against him.  In the name of sanctity of marriage, the Indian Society continues to let women fall prey to sexual assaults based on the mentality that rape by spouse is not rape. Marriage is often confuses as just a physical union of two souls where in actual, it is a spiritual union of two. As per the Constitution of India, every law that is passed must be in consonance with the principles that are enshrined in the constitution. Any law which fails to do so is considered to be ultra vires and it can be struck down. In the case of Marital Rape, the exemption of Section 375 withdraws the protection of married women on basis of her marital status compared to other women. Not only Marital rape but women are sexually exploited in various other forms, one being sexually active with a partner based on a promise of marriage. India has no legislation specifically provided for protection of women in such cases because even though there is consent during the time of the intercourse but that consent is affected by other factors that turn out to be false later.
Although a man’s violent or unapproved attempt to have sex may entitle a wife to bring action for criminal assault, the incorporation of the principal of liability for marital rape in our penal laws is absent. Non-criminalisation of offences like sex on false promise of marriage is a serious concern in the Indian system. There is a need of making new laws and amending the current ones to make India a safe place for women. The laws currently in force help in rendering justice to the victim by penalising the offender but there can be a better and more efficient way of dealing with the offenders in such heinous offences. There should be a legislative backing provided to women instead of looking down upon them in case they are subject to any crime instead of the person actually responsible for the act.

[1] Bhupinder Sharma V. State of Himachal Pradesh AIR 2003 SC 4684
[2] Criminal Amendment Act, 2013 (No. 13 of 2013)
[3]Justice J.S. Verma Report, 2013
[4]Section 375 Of Indian Penal Code, 1960
[5] Section 375 Of Indian Penal Code, 1960
[6] Section 376 Of Indian Penal Code, 1960
[7]Section 90, Indian Penal Code, 1960
[8] 2013 7 SCC 675
[9]CRA no.216 of 2018
[10]AIR 2014 SC 384
[11] 2006 11 SCC 615
[12]   AIR 2019 SC 1857


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