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Maneka Gandhi once commented that marital rape laws cannot be applied in India. Why are we so clueless about Consent?
The power to say no overtakes all else, because it is tied in with your bodily and mental integrity. Getting married does not automatically mean that you barter away your right to consent. This means, that marriage does not imply that you have no right to say no to sex when your husband demands it.
However, Indian law neither recognizes nor addresses the issue of marital rape, or rape that takes place within a marriage.
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By refusing to penalize a husband who forces his wife to have sex with him, the law is effectively taking away the right of a wife to say no, and nullifies the value that her consent has, in fact and in law. Maneka Gandhi went on record to say that criminalizing marital rape would go against Indian culture – while the jury still remains out there on what the idea of ‘Indian culture’ is.
To this end, arguments that view marital rape as a ‘western concept’ or a ‘foreign concept’ have been advanced. Marriage is seen as a sacrament, as a concept with sacred overtones – which in effect spiritualizes the social institution – and therefore, makes it inviolable. Tying in rape and crime with marriage is perceived as a jarring dissonance to something so sacred.
On the other side of the fence, though, there is considerably tangible social dissent on the refusal to criminalize marital rape. The equalizing of consent and marriage, and treating them as not mutually exclusive is dangerous to the interests of married women.
In a social set up that only ferments male privilege through patriarchal upbringing, there is a danger of reiterating this hegemonic masculinity by disentitling women from being able to refuse sex when she is not up to it. It legitimizes the male right to dominate the female body, and in effect keeps the cycle of violence alive.
Marriage does not whittle away consent, or the right to refuse, and even if marriage may be deemed an equivalent of
consent, it must be remembered that consent can be revoked.
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I wholly agree with you Kirthi. You have made a solid case for the need of understanding that with regard to sex -consent is key -whether within or outside of marriage. As a sociologist I too feel very strongly about this debate. Especially, in societies where the bride and groom are often complete strangers, it becomes even more important to ensure that sex is by consent within marriage, as much as outside of it. Like you rightly point out it isn’t so much our Indian culture, as it is a patriarchal mind set that is not very interested in being fair and equal. All religions have worked since time immemorial to favour and reinforce the hegemony and convenience of the patriarchy. It is an outcome of this same patriarchy that marriage became so “sacred”. But of course this is only to ensure that rights and status of men are preserved in marriage while women bear the real burden of its “sacredness”.(she has to be virgin before and chaste after, she must leave her home and security to serve the spouse, his parents and his progeny with exclusivity, she must bear sons to ensure the continuance of the male lineage etc. etc.) Often young, uneducated and illiterate girls and women who have little access to awareness or understanding of their rights, have been violently exploited throughout their marriages and lifetimes. They have had to bear violence and abuse both sexual and domestic all to preserve this “sacred” institution. Marriage must be more clearly defined by fair and equal rules pertaining to rights and dignity of the women too (including in the area of consensual sexual relations) and violations should be penalised.
Thank you for reading, Sonia! And thank you for sharing your very articulate thoughts. I learned a lot from the notes you’ve left me 🙂
The beauty of your article is here the root cause of marital rapes. It’s not that Men can Rape them or sexually abuse their wives without their consent but it becomes a cake walk for them to abuse them as wives never say NO. The root cause is that when the first time any husband tries to force himself on her she have to say NO and leave. May be talk to elders in the house instead of being quiet about it. The issue with Indian community is that we all have sex but won’t talk about it. That is another reason Men are encouraged to behave the way they want behind the closed doors.
Thank you for reading, Upasana 🙂 🙂 And thank you for sharing!
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