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‘Sacred’ Indian Marriages And The ‘Right’ Of Men To Sex With A Wife Against Her Wishes

Let's take criminalising of marital rape seriously. Else let’s try telling our daughters that sometimes they will be forced into sex. Even if they don’t want to and they don’t enjoy it, they must. 

Let’s take criminalising of marital rape seriously. Else let’s try telling our daughters that sometimes they will be forced into sex. Even if they don’t want to and they don’t enjoy it, they must. 

There’s some outcry (as much as can be expected with all that’s going on) on the Chhattisgarh judgement on a dowry case where domestic abuse and cruelty were cited as offences perpetrated by the husband on the wife, in which the judge declared, once again, that marital rape is not criminal. Since the wife isn’t a minor and is legally wedded, forced sex can’t be considered crime when perpetrated by the husband.

Even though there was the recent Kerala judgement which leans much closer to sanity and common sense of justice (in which the judge ruled marital rape to be cruelty and valid ground of divorce), there’s not much point blaming the judge in this Chhattisgarh matter. After all, IPC 375, even in its reinforced post Nirbhaya glory of being as encompassing as possible, puts down an exception for married women when it comes to rape if perpetrated by the husband, unless she is minor. There is also in fact the restitution of conjugal rights matter, in which, a legally wedded wife, can be claimed back by her husband for availing ‘conjugal’ rights – aka sex.

The bottom line is, India’s legal system largely models sex within marriage as a right, not a choice.

If anything, it seemed that the judge in this case tried to criminalize the husband’s action as much as possible, using section 377 for unnatural sexual act. So a violation of the ‘order of the nature’ is ruled as criminal, while the violation of the ‘will of a woman’ is not to be taken into consideration if she is married to her violator. Alas, the irony.

Yes, the Kerala progress seems lost now with the Chattisgarh case. And that of course is how the fight for women’s rights has always been; one step forward and a few steps back. The problem here are not the judges or the judgement, but the law itself.

Marital rape ‘cannot be brought within the purview of the law on rape’

Haribhai Chaudhary, Indian Minister for State of Home Affairs had stated in 2015 when this debate came up in Parliament that since marriage in India is perceived as a sacred union, marital rape cannot be brought within the purview of the law on rape.

As Flavia Agnes summarizes in one of her articles on this matter, ‘Hindu marriages ceased to be sacramental more than half a century ago and Muslim marriages were always contractual in nature.’

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However, the bigger problem with the two current legal provisions that grant men impunity on rape and forced sex within a marriage are

  • exemption granted to husbands under section 375 of IPC (exception 2: sexual intercourse or sexual acts committed by a man with his wife, wife not being under fifteen years of age, is not rape)
  • and the provision to restitute conjugal rights

It is not just that this legalizes abuse under certain situations (within a marriage); but that it also reinforces ‘consent’ of the woman to be immaterial, as long as it is her husband who is forcing himself on her.

The lesser known ‘restitution of conjugal rights’ matter

Section 376B of IPC does criminalize non-consensual act of sexual intercourse of a husband with his wife who is living separately (whether under a decree of separation or otherwise). However, what essentially nullifies this protection is the fact that section 9 of the Hindu Marriage Act (and section 22 of Special Marriage Act) grants the right to either spouse to file a petition in a matrimonial court to restitute conjugal rights if abandoned by a spouse after solemnization of marriage.

It is worthwhile to note here that although in India such provisions remain valid under Hindu, Special, and Muslim Marriage acts, it has been done away with (in 1970) in the United Kingdom (feudal British legal system is quoted as the origin of the Indian law in the first place).

A public interest litigation (PIL) was in progress to be heard by a special bench of the Supreme Court, for addressing the legal disputes around this matter, including debate on the benefit and intention of this law. This argues for abolishment of the provision, on the grounds of it being against Article 14 and 15 of the constitution.

Why haven’t we criminalized marital rape yet in India?

Let’s attempt to understand however, why the laws are the way they are. Why haven’t we criminalized marital rape yet in India?

If one scrolls through social media and / or any comments on articles arguing for abolishing marital rape, the arguments put forth seem to revolve around two major categories.

How will men find sex then?

As marriage is still believed to be monogamous, and still considered the primary means to the biological needs of a sexually starved nation (the nation here is of course masculine), this is put forth as a valid argument by these comments.

How will we fight the false allegations galore that this will give rise to?

The comments express the fear that this will create a plethora of  abuse of men – from women leaving a marriage to live separately, or living non monogamous lives while the husband “pays expenses and starves sexually”, to falsely accusing husbands after consensual mating for revenge and leverage. Abuse of 498A is often cited – that this will cause men to be “always worried about being wrongfully accused”.

The elephant in the room that no one wants to talk about, of course, is what about the abuse on the women that is proportionally much bigger? Of course that never happens, right? Who has ever heard of men forcing women? end sarcasm

Clearly a case of entitlement of Indian men

The fact is that even if a woman saying no to sex in a marriage has nothing to do with any issues between the couple, it could be just a matter of not wanting to engage in a physical, or otherwise spousal, relationship with her husband – and it is still her wish. Forcing her consent through a state mechanism or physical force is still an assault on her autonomy, and is not a viable position for a marriage.

Marriage doesn’t (shouldn’t) grant consent for a lifetime, nor is consent a one-time matter. In libertarian civic societies, forcing anyone into sex (or into anything for that matter) is wrong, no matter what the reason. The wronged spouse can file a legal suit to refuse alimony, nullification of marriage, or even damages. But when a spouse (male in most cases) feels entitled enough to consider state aided coercion, or indemnity provided by a lack of legal protection as a just means to sex, there is a profoundly disturbing problem.

This is just the belief in the minds of Indian men that another human being is inferior to them and nothing more than personal property (both lesser and an object – a double whammy). When such a man has ex with his wife forcibly, he knows very well of the lack of consent of his partner, and yet doesn’t mind going ahead. This is a horrifying situation, and it is further problematic that this fact is lost on authorities and commoners alike in India.

Let’s think clearly about this

On the question of the problem of prosecution and false allegations, when murders happen during riots, or mass events, it can be equally difficult to verify claims and prosecute perpetrators. Shall we just make murders under crowded or chaotic circumstances legal then? I know I am simplifying, but the right vs. wrong is really, indeed, simple here.

So, let’s stop to think as a nation what these judgements, forced by archaic laws, does to consent, or in a broader sense, to the concept of a woman owning her own body and decisions. Let’s try telling our daughters that sometimes they will be forced into sex. Even if they don’t want to, they don’t enjoy it, they must. Or, let’s choose the lesser evil for once, for the sake of sanity. It’s about time we fight harder for criminalization of marital rape.

Image source: By gauravfkumar on pixabay

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About the Author

Tanushree Ghosh

Manages supply chain teams in Intel Corp. Blogger, writer and poet. Founder and Director Her Rights (www.herrights.website). Contributor Huffington Post US, The Logical read more...

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