Crime and Consent
Author : Saumya Snehal, CNLU Patna.
It is an old saying, “Where women are honoured, gods reside there.” From time immemorial, women have been considered as goddesses like Durga, Parvati, Kali, Shakti, Vaishnomata, Bhairavi so on and so forth. Indians put them on the pedestal and offer prayers and sacrifices. In contrast, more ‘goddesses’ are being killed in womb, burnt alive for dowry, harassed in workplaces and streets, raped, abducted, exploited and discriminated. Women have been treated like a commodity and it is the duty of the judiciary to eliminate such evils.
Jawaharlal Nehru emphatically maintained that “legislation cannot by itself normally solve deep rooted problems. One has to approach them in other ways too, but legislation is necessary and essential so that it may give that push and have that educative factor as well as the legal sanctions behind it”. Legislation is the first step and therefore ambiguity in law leads to newer evils rather than eliminating the ones they were meant for.
India is a country where the society is predominantly patriarchal. Another result of this is that the laws take into account the male perspective in such a way that the women’s consent or opinion is usually ignored. This is not acceptable for a developing country like India where empowerment is necessary at this point in the way to becoming a developed country. Herein, if half of the population is made to feel that their opinions do not matter will not make for eligible counterparts to shoulder the development of the country.
To illustrate this lets consider the IPC definition of rape , consent means an unequivocal voluntary agreement when the woman by words gestures or any form or verbal or non verbal communication, communicates willingness to participate in the sexual act . In the same section it is provided that rape is proved when the act so defined under this section is proved against her will, without her consent and circumstances where her consent cannot be said to be free. Here the absence of her consent makes a crime. This is a very important section as it gives women the right to have say in matters related to their privacy and sexuality. What is demeaning is the position of consent vanishes once the woman gets married. After that she has no right over her body and no control over her own desires. She is expected to submit to the authority and whims and fancies of her husband, she loses her right to deny and her consent ceases its importance and utility. If her husband establishes sexual relations or forces her to the same, the fact that she had not consented to it is of no consequence. She cannot bring the perpetrator who has violated her to justice. Why? Cause he married her and now presumably owns her?. This isn’t empowerment. This is demeaning a person, making them lose their self worth.
Marital Rape is often associated with violence, assaults, abuses and forceful intercourse as well. It does not only have a physical pain but also leads to the psychological destruction of the victim. In October 2017 Supreme Court of India has made landmark judgment that intercourse with a wife under the age of 18 years is criminalized in nature. The landmark order decision took place at a time when the apex court was already hearing petitions calling for marital rape to be declared crime and a debate over the age of consent. The court made it clear that it was not saying anything on the big issue of marital rape although the decision would have a potential distress on that. Before this judgement, there was disagreement between rape and child marriage provisions on the question of sexual intercourse and age of consent. Section 375 of the Indian Panel talks about sexual intercourse with a girl less than 18 is rape but it makes an exception allowing sex with wife who is 15 or above, saying it is not rape even if it is without her consent.
In Sree Kumar vs. Pearly Karun , the Kerala High Court heard a case for the offense under Section 376A and held IPC won’t be applicable as the spouse is not living separately from her husband under a declaration of partition or under any custom or use, regardless of the possibility that she is liable to sex by her better half without wanting to and without her assent. For these circumstances, the spouse was subjected to sex without her will by her husband when she went to live respectively with her husband for 2 days as result of arrangement of separation measures which was going ahead between the two parties. Subsequently the spouse was held not liable of raping his wife however he had done as such.
Instances like this need to be stopped. With the aadhar judgement of right to Privacy becoming a fundamental right, right over one’s own body and sexuality is both an issue of privacy and dignity under Article 21 of the Constitution of India, 1950 and should be upheld at all costs.
The law defined under Section 366 of the Indian Penal Code which deals with kidnapping, abduction, or inducing of females with the purposes of compelled marriage and illicit intercourses. This law provides a mechanism to throw a ring of protection around girls themselves and to penalize sexual commerce on the part of persons who corrupt, or attempt to corrupt the moral of minor girls. The law is well drafted and subscribes an imprisonment upto 10 years and also liable to fine. This section is pivotal to bring to justice many girls who are unaware especially from the lower strata of the Indian society who in the hope of a better life and future are ruined to the fires of hell. In the Khalil-ur-Rahman Case, it was held that the expression ‘against her will’ means that the act was done not only without consent of the woman but in spite of her opposition to the doing of it. It was also held that if the intent of the accused is necessary to constitute the offence is established the offence is complete whether or not the accused succeeded in effecting his purpose, and whether or not in the event the woman consented to the marriage or the illicit intercourse.
It is imperative to note here that here not consent of a woman but the absence of consent that is acknowledged in this section of IPC that makes the offence punishable. Here too, the definition of the consent of woman has been given lesser preference, she is supposed to show opposition to prove her lack of consent.
Consent is a major issue, an essential part of human dignity, which should be upheld no matter what. Crime perpetrated should be punished no matter what.