Gujarat HC's observation takes conversation on criminalising marital rape forward, but long way to go for change in law

The Gujarat High Court on Monday gave relief to a man accused of raping his wife on the grounds that there is no law criminalising marital rape. Hearing a petition filed by a doctor seeking the quashing of an FIR for rape registered against him by his wife, Justice JB Pardiwala, however, orally observed that marital rape should be made a punishable offence. Stating that a physical relationship of a husband with his wife against her consent could not be termed as rape, Pardiwala observed, “The husband cannot be prosecuted for the offence of rape punishable under Section 376 of the IPC at the instance of his wife, as marital rape is not covered under Section 375 of IPC which provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape. However, a wife can initiate proceedings against her husband for unnatural sex under Section 377 of the IPC.” Citing previous judgments, the court observed that though a husband had the right to have sex with his legally wedded wife, she was not his property and it should not be without her consent. This brings the discussion back to the all-important question of what is consent. Several major judgments have dealt with this issue in varied ways in the recent past. Take for instance, the Mahmood Farooqui case . In the case, Kapil Sibal had argued for Farooqui. Paragraph 47 of the judgment quotes him as contending, “It is not unknown that during sexual acts, one of the partners may be a little less willing or, it can be said unwilling but when there is an assumed consent, it matters not if one of the partners to the act is a bit hesitant. Such feeble hesitation can never be understood as a positive negation of any advances by the other partner.” [caption id=“attachment_4416891” align=“alignleft” width=“380”]  File image of Gujarat High Court. Image courtesy: gujarathighcourt.nic.in[/caption] Sibal’s observation implied that if there is a hesitant no, the accused can go on and violate the sexuality of the victim. Sibal further argued that there might have been absence of consent on the part of the prosecutrix, but it wasn’t conveyed to Farooqui in ‘clear cut terms’. The court went on to accept Sibal’s argument that a no on the part of the complainant may actually mean a yes, if it’s a ‘feeble no’. However, according to the law under Section 375 Explanation 2, it has been put out very clearly that, “Consent means an unequivocal voluntary agreement” by the woman. This explanation was inserted in the law on the recommendations of the Justice Verma Committee report, and it is based on the Canadian rape law under which the accused cannot make a subjective argument that he ‘believed’ that there was consent, instead he has to prove that he took reasonable measures to ensure that there was unequivocal consent for the specific sexual activity. Hence, there is no room for an assumed or implied consent. It is also interesting to mention here the case of India- born American actor, Aziz Ansari. Ansari, who was accused by a woman of sexual misconduct, came out with a statement which read: _“_It was true that everything did seem okay to me, so when I heard that it was not the case for her, I was surprised and concerned. I took her words to heart and responded privately after taking the time to process what she had said.” This again, was an implied unilateral ‘okay’ which Ansari took to be as consent. The Harvey Weinstein scandal brings in another angle to this debate. It was argued by his counsel that the victims ‘agreed to the act’ to ‘advance their career prospects’ and thus the acts were consensual. It is difficult to ascertain the veracity of claims on consent or the lack thereof. The line is drawn where discomfort starts. Assuming one action/verbal conversation as a leeway for an act of discomfort to any of the parties involved certainly defies the idea of consent. Take, for instance, the case of Tehelka’s former editor-in-chief Tarun Tejpal who was accused of sexual assault by a colleague. The journalist had written a hard rebuttal to Tejpal’s public apology by saying that, “This is what non-consent constitutes: the moment you laid a hand on me, I started begging you to stop. I invoked every single person and principle that was important to us, the fact that you were my employer, to make you stop. You refused to listen. In fact, you went ahead and decided to molest me again on the following night. We have often spoken of “what turns men into beasts” at edit meetings. It is this — not being able to take no for an answer.” Clearly in this case too, Tejpal took the prerogative of his position to assume a certain sense of entitlement over the victim’s bodily integrity. As of now, the concept of consent in India lies in the realm of ambiguity. However, human rights practitioners and women’s rights campaigners argue that consent cannot be assumed. Whether it is feeble, weak, shaky or nervous, a ‘no’ will always mean ‘no’. A person’s silence does not imply consent either. All sides involved in the sexual activity must feel that they have the authority to stop the activity at any given time. The Gujarat High Court judge’s observation, too, reflects the view that this should apply to all women, irrespective of age and marital status. Recently, the RIT Foundation and The All India Democratic Women’s Association (AIDWA) had filed a petition before the Delhi High Court challenging provisions allowing “legal rape” of married women. The petition also challenges the present rape law which draws a classification between girls/women based on whether they are married, unmarried, or married but separated. The petition is pending before the court. The Gujarat High Court’s observation in favour of criminalising marital rape is a step in the right direction. However, it is clear that there is a long way to go before such a law becomes a reality.