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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.
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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