Consent to Intercourse: Failures of the Indian Penal Code

On October 6th, the Indian Penal Code completed 161 years of its enactment. This was the codification of definitions of crimes and determination of their penalty. Since its adoption by the Imperial Legislative Council, as the standard law for punishment in erstwhile British India, many changes have been made to it. The Supreme Court of India decriminalised adultery in 2018, Indian Government, through an amendment, criminalised triple talaq in the year 2019. The Hon’ble court accused these laws to be a privilege for men, but, contradictorily, Indian law and penal code has been, and still, giving endorsement to the loathful crime of marital rape through the second exemption of section 375 of IPC.

In 1819, the Marathas lost the decisive conflict with the East India Company in the third anglo-Maratha war; this eventually left the company with the control of almost the whole of India, either directly or through a subsidiary alliance. In 1830, the company replaced the Mughal emperor as the suzerain of India. The company, being a commercial body, was not entitled to rule a country, subsequently, The Charter Act was passed by The British Parliament in 1833, which recognised the company as a full administrative body to rule Indian colonies under the British crown through the board of control.

The company needed a set of laws to control a country as vast and diverse as India, the British law could not be imposed because it was drafted for ‘citizens’. Resultingly, the first law commission was set up in 1833 under Lord Thomas Babington Macaulay. The commission submitted its final report in 1856. With the efforts of Sir George Peacock, the Indian Penal Code was finally enacted on the 6th day of October 1860. Before we move forward with this discussion two points must be noted; firstly, this codification was based on the infamous principles of a Victorian patriarchal society that never considered married women as a separate individuals and, secondly, these laws were specifically drafted to be imposed on ‘subjects’ of a colonised country.

In the primitive Indian judicial system, panchayats and local courts, marrying the victim were looked at as the solution for rape; if the accused or convict agrees to marry the victim he was immunised from penalty. But is this concept still relevant in contemporary and progressive India? Answering ‘no’ to this question is not that easy, even harder when not more than a year has passed since, then, Chief Justice asked a government servant if he would marry the minor victim he was accused of raping repeatedly (Mohit Subhash Chavan Vs. the State of Maharashtra). Seeing such a mindset at, even, the apex of the Indian judiciary must be disappointing for victims who still believe in the law.

According to the 2019 report of the National Crime Records Bureau (NCRB), a total of 4,05,861 crimes were ‘registered’ against women, showing an increase of 7.8% over 2018. The report also claims that about 70% of women have faced domestic violence of any form, of which 30% faced cruelty by husband or his relatives. The crime rate registered per lakh women was 62.4 in 2019. While presenting records of crimes against women NCRB should repeatedly and emphatically mention that they are only figures for reported cases; actual numbers are, certainly, way more than this.

As more than 70% of crime against women is rape it is mandatory to talk about how Indian law deals with this crime. These two sections in IPC for this crime; 375 that defines the scope of rape and 376 that determines the punishment for it. The concept, or rather legitimisation, of marital rape, arises with the second exception of section 375 that states; “sexual intercourse or sexual acts by a man with his wife, not being under the age of 15, is not rape”. Here, it is not specified if the sexual intercourse is consensual or forced. That, substantially, depicts that there is no concept of consent for a married woman in Indian law.

On being sued, in August 2017, in Delhi High Court through a petition government of India told the court that criminalising marital rape will destabilise the institution of marriage. A married woman, in India, is believed to have given consent for intercourse any number of times, at the pleasure of her husband, according to current law if a woman agrees to marry she is considered to have given perpetual, or implied, consent to have sex with her husband.

This exception not only infringes basic principles of morality and human rights but also neutralizes many fundamental rights that should be equal for every Indian citizen; like the right to equality (article 15) and the right to protection of life and personal liberty (article 21). The section is firmly based upon the patriarchal mindset that treats women as subjects to their husbands, serving their interests by abrogating the rights of a specific gender.

Besides being a privilege for men, this section can also be accused of discriminating against two Indian citizens belonging to the same gender; a married and unmarried woman. This exception immunises the husband of a married woman from a rigorous punishment that would be granted to another convict of the same crime while the victim is unmarried. Even when it is evident that it would not be easy for a married woman to escape such situations or report the crime. Our lawmakers do not understand the basic concept that consensual intercourse without marriage is legit and non-consensual with marriage can never be.

With visions of its founding fathers India should have been an icon for social justice and equality, Gandhiji’s dream of wiping out tears from even the eyes of the last row of society would never be fulfilled with thousands of citizens struggling and suffering from their pain and so would our dream of a welfare state. Our government under the banner of “Beti padhao, Beti bachao” seems more interested in keeping the ‘institution of marriage’ intact than upholding justice and equal rights.

Syed Mohammad Ali is a student pursuing Economics from Jamia Millia Islamia.

Edited by: Malaika M Khan