Section 375 of the Indian Penal Code defines rape as sexual intercourse with a woman without her consent. Exception to Section 375 of the Indian Penal Code 1860 provides, “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” Following are the hidden presumptions in language of this exception:

(a) In a normal marriage also, the man commits sexual intercourse on his wife (rather than husband-wife mutually enjoying sex).

(b) A husband does not require consent of his wife before having sex with her.

(c) Only a man is able to perform un-consented sex on his spouse, and not vice versa.

Let us visit the above said exception by delving into the meaning of “consent”. According to the Oxford Dictionary, consent means, “Give permission for something to happen” or “Agree to do something”. Now, Permission and agreement are quite different. Permission is given by a person who is higher in authority. Agreement may be reached by equals. But in any case, both permission and agreement are very formal in their connotation. Both are given by an individual mind, that too for a formal act.

But marital marriage is not a formal relation. Nor is it about one of the individuals only. Consent is therefore not the correct word for defining that state of mind which must exist for marital sex. This takes us to two questions. Firstly, if “consent” is not the appropriate term for marital sex, then what is? Secondly, is martial sex mere “sexual intercourse” or is it also “making of love” and/or “mutual enjoyment of erotic feelings”?

Finding a better expression than “consent” in a healthy marriage: There is nothing like “Sexual intercourse by a man with his own wife”. Instead there is “both the partners mutually enjoying sex”. Rather than the man committing sex on his wife, healthy marriages undergo a mutual enjoyment of making love, which includes and culminates in sex. So which mental element is present in healthy sexual relationships? Rather than consent, it is mutual participation. The wife does not have to “allow” the husband to “perform sex on her”. She rather participates actively or passively. This can happen only when both the partners are in the right frame of mind. A right alternative for “consent” therefore, is “mutuality”.

Consent in unhealthy/forceful relationships: Obviously in forceful relationships, there will be no mutuality. There may be rape also. In grave cases involving injury, rape may be proved. But in most of the other cases, nothing can be proved or disproved in Courts. Can unhealthy or forceful relationships be treated with law? Is the justice delivery system a cure for everything that can’t even be proved or disproved? Can sadism be cured with psychological help, respectful examples in family, healthy grooming of child, larger sexual awareness etc. These are some points that we need to think about before criminalising marital rape.

In the recent case of Mahmood Farooqui vs. State (CRL.A.944/2016 decided on 25 Sept. 2017) Courts have coined the concept that “a feeble ‘no’ may mean a ‘yes’”. It was held,

“Where the parties are known to each other, are persons of letters and are intellectually / academically proficient … In such cases, it would be really difficult to decipher whether little or no resistance and a feeble ‘no’, was actually a denial of consent.”

The above concept reads too much between the lines. Going by the above analogy, a ‘feeble no’ by an educated wife would mean a ‘yes’! Educated wives will have to decide the decibel of ‘no’!

The presence or absence of mutuality cannot be proved/disproved on the basis of statements of parties and cross examinations regarding the forcefulness of ‘no’. Law and justice require everything to come out in black and white in order to ensure efficient results. But the making of love and the forcing of sex are both so very subjective and personal that they cannot be recorded on court paper nor can they be proved in cross examination. It is best to leave this territory under the control of family grooming and social awareness.

In the meanwhile, let’s do our bit of talking about the joys of melting consents and mutual love making that are much deeper and happier feelings than the unilateral act of enjoying a body.

The author is a practicing advocate