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Trending: Call for Papers Volume 5 | Issue 3: International Journal of Advanced Legal Research [ISSN: 2582-7340]

ANALYSING THE IDEA OF CONSENT IN MARITAL RAPE WITH NEXUS TO THE CASE OF RIT FOUNDATION V. UNION OF INDIA – Shantanu Shastri

Abstract-

‘Consent’ is a grey area and the context in which it is read bears an impact on the recognition of forced sexual intercourse as ‘rape’. The issue of ‘recognition of forced sexual intercourse in marriage’ as ‘rape’ is one where the solution has to be arrived at by a bottom to top democratic approach and judgment be suspended exercising restraint by parties involved until the ‘invisible hand’ churns the solutions within the society. This paper deals with the conflict between individual liberty and ‘institution of marriage’ underlying the issue and analysis whether bringing in ‘forced sexual intercourse in marriage’ under the definition of rape by the supreme court amount to judicial overreach and what are the pragmatic difficulties that would be faced if forced intercourse If marriage is criminalised. To present a particular idea in a purely objective fashion is in a certain sense evil.[1] Law is a pseudoscience with subjectivity and greyness as a recurring theme in most issues. This paper highlights the multiplicity of perspectives that led to split verdict in this case and prevent the overwhelming tendency to view such an important issue in binary fashion.

Introduction- 

H.L.A Hart in his book the concept of law writes, that the fundamental edifice of law deals with distributing burdens and benefits in treatment of a class of individuals by treating like cases alike.[2] However, the exercise remains qualitative because unlike natural science where like cases behave alike, in social science the observer has option to decide ‘likenesses of two cases. Knowledge consists in subsuming nature and society into categories where quasi-transcendental human interests act as a presupposition for objective human knowledge and what is rational depends on the perspective of the observer.[3] This leads to varying views on ‘intelligible differentia’ and ‘reasonable nexus’ with regards to the ‘objective’ sought to be achieved.[4] This thread of subjectivity runs through the entire debate on criminalisation of marital rape and the constitutional validity of exception 2 of section 375 of I.P.C which lead to a split verdict of Delhi high court in the case of RIT foundation v. Union of India challenging the constitutional validity of this section. In this article I analyse both sides of the coin and highlight various facets of subjectivity underlying the issue.

[1] Rohit De, A People’s Constitution 125 (1st Ed. 2018).

[2]H.L.A Hart, The Concept Of Law 261 (3rd Ed. 2014).

[3]Lasse Thomassen, Habermas A Guide For The Perplexed 189 (1st Ed. 2010).

[4]Arun Thiruvengadam, The Constitution Of India (1st Ed. 2017).