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What is it that allows for a society to completely refuse autonomy of bodily rights for adults (read women)- again and again, even in the post Nirbhaya, post MeToo, 'awake' India?
Trigger Warning: This deals with marital rape, domestic violence, and gender based violence, and may be triggering to survivors.
Marital rape. The come-and-go issue that never quite goes away, yet never becomes problematic enough for the Indian society to lose sleep over.
Well, maybe that’s so as there’s no such thing. As per our laws, there can be no marital rape – as forced sex within a marriage is not rape. Indian courts have gone back and forth on this, but there’s still no law criminalizing the same. Even the Penal Code overhaul after the brutal 2012 Delhi gang-rape and murder couldn’t touch the “sanctity of marriage” and a husband’s “right to force within it.”
Since marriage in India is perceived as a sacred union, marital rape cannot be brought within the purview of the law on rape. —Haribhai Chaudhary, Indian Minister for State of Home Affairs, 2015
The most recent, this week’s Delhi high court judgement, is no different. The judgment was split across the bench. While one justice affirmed the criminalization, the other denied it saying, “The expectation of sex of the husband, with his wife, is a legitimate expectation, the healthy sexual relationship being integral to the marital bond.”
Well, forced sex apparently is ‘healthy sexual relationship’!
A closer look at Indian laws shows how all pervasive the impunity on forced sex within a marriage is.
Let us look at the exemption granted to husbands under Section 375 of IPC (exception 2) says, “Sexual intercourse or sexual acts committed by a man with his wife, wife not being under 15 years of age, is not rape, and the provision to restitute conjugal rights.
These two not only legalize abuse under certain situations (within a marriage) but they also reinforce ‘consent’ of the woman to be immaterial for sexual intercourse as long as it is her husband who is forcing himself on her.
Let’s take the lesser-known ‘restitution of conjugal rights’ matter. Section 376B of IPC criminalizes a husband having sex with his wife without consent, if they are living separately (whether under a decree of separation or otherwise). However, this protection is nullified by Section 9 of the Hindu Marriage Act and Section 22 of Special Marriage Act which grant 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, they have been done away with in 1970, in the UK (the feudal British legal system is quoted as the origin of this law in the first place).
But why? What is it that allows for a society to completely refuse autonomy of bodily rights for adults (read women)- again and again, when its origin has been done away with, even in the post Nirbhaya, post MeToo, ‘awake’ India?
On scouting around on the internet and social media, here are the major arguments I found. I choose to tackle these arguments here, and not the legal discussions around sanctity of marriage, since these are views of the society we live in, and as I feel it’s more important to try and change the mindset of the society (of everyday men and women like us).
If that could happen, changing the minds of the judges might get easier.
And I will try to do so as simply as possible, at the risk of oversimplifying, for it is indeed quite basic.
There’s this thought that says, “A husband has a right to sex within marriage. If he is unsatisfied and his needs aren’t met, where is he supposed to go? What is he to do?”
Well, let’s leave alone the means that do exist to meet the biological needs of a man under such constraints (for example, engaging in a physical relationship outside of marriage is not an offense, just ground for divorce) because our society still views engagement between consenting adults that don’t require force to be a bigger evil than forcing another human into a non-consenting action. The irony of it.
Think about this. There are many things in life that can be considered our rights – but since life isn’t fair, we are often deprived of those. Does that mean we can grab by force our dues? Or do we still need to follow a legal, civil recourse?
If my month’s pay is being held by my employer unfairly – can I beat up the position holders to give it to me? Will that be legal? The argument for a husband’s “right to sex” from a wife is just as ridiculous as this, and we have been letting ourselves get away with it in this case.
Too bad your spouse doesn’t want to have sex with you (always, or when YOU want it). Find a legal recourse. Separate. Discuss. Find an alternative. DO NOT RAPE.
No recourse can be found. Therapy won’t work, nor will discussions, for the women are doing it just to punish the men. So then, isn’t raping her (oops, sorry, forcing her into sex for it), you punishing her back?
Isn’t it the initiation of a bigger problem in the society where we are creating, nurturing, and protecting men who enjoy and are OK with nonconsensual intercourse? Aka force?
Which one do we think will be a bigger issue to the fabric of our existence? Women who nonviolently ‘punish’ men by withholding sex, or men who are taught to force women into compliance, retorting back with violence.
Note, I have had the argument of ’emotional violence’ by women thrown around in this context too. The same answer there. If anyone else is, according to you, being mean, unkind, downright evil to you, do you get to forced them physically for something you want? Can I physically assault my evil cousin (or colleague), or an in-law, who is creating disruptions in my life deliberately, and let the law be ok with it?
No? Then why is this particular enforcement and retaliation justifiable for a spouse?
Why would a wife not want sex if she is married? This one is probably the most interesting, for it shows, how naïve we are as a society to women’s physical desires, and the mere existence of such a thing.
Let’s leave alone all other reasons – isn’t it possible that she just doesn’t enjoy sex? Or she doesn’t enjoy it with her spouse?
Instead of searching for a solution here, say therapy that would allow for both partners to enjoy the act, we think that it’s ok just to force one partner to participate in the act.
Many men don’t realize that pleasuring a woman might be more difficult, and needs more effort on their part, than the pleasure they are getting out of the act of sexual intercourse. The biology of this is never taught to them and, therefore, they can’t comprehend “a woman having sexual urges that remain unsatisfied” with her current partner.
Thus, when a woman is
there are only two ways a man, the husband in this case, will respond. Either take it personally (I am not man enough!/ DO YOU THINK I am not man enough?!) or blame it on her ‘character’ (she is a slut).
Many women I spoke to claim emotional alienation, pain, physical ailments, lack of energy, and general dissatisfaction with the act itself. All of these are indeed things that need to be tackled for the sake of the men in the marriage (and the women, whenever it’s reversed). But how can force be the answer? How will that, in any way, lead to fulfillment? Or ‘healthy sexual relationship’ as the judge called it?
And that is the problem – when marital rape is not criminalised, the message to the society is that mutual fulfillment is not the goal – forced ‘right’ to sex is.
There’s a worry I hear about – that this will create “widespread abuse of men through false accusations of rape.” With allegations that will be impossible to disperse and therefore, just like 498A misuse – men will be widely victimized.
This one completely baffles me. For this says in a way, that any crime that is difficult to prosecute should not be criminalized. Otherwise, it might victimize the innocent. So murder, during riots, or mob actions – no matter how violent – which could be argued to be difficult to prosecute, should be legalized under this argument?
It creates a solution for men whose needs wouldn’t otherwise be met.
I am on the side of the men here. Most men who suffer emotional abuse/ deprivation/ victimization from wives won’t be the ones forcing themselves on their spouses. Instead of helping them, keeping marital rape criminal helps perpetrators (mostly men) who use physical force on their spouses for sex. We are not creating a solution space to discuss real issues within a marriage, that men who won’t use force might need and can avail.
My intention with this piece is not to bash men, and therefore, I have deliberately tried to be gender neutral through most of it using ‘spouse’, ‘partner’, and so on, wherever there’s a realistic possibility of any one of the two being the abuser. However, ground reality IS that it is usually the husband who is the abuser.
(There have been valid cases of men being raped by women too, but we it’s highly unlikely in the context of marital rape where the balance is skewed so horrifically against women.)
It’s the abuse of women – perpetuating a culture of considering them as lesser and objects (literally lesser objects) whose consent doesn’t matter – that we are role modelling through our continuous support of marital rape as “it happens” and “we can’t disturb sacrament of marriage”. Please, let’s change that. No human should be able to force another into an act the other doesn’t consent to.
Image source: a still from the film The Great Indian Kitchen
Tanushree Ghosh (Ph. D., Chemistry, Cornell, NY), is Director at Intel Corp., a social activist, and an author. She is a contributor (past and present) to several popular e-zines incl. The Huffington Post US ( read more...
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