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 is 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 counted as rape.
Indian courts have gone back and forth on this, but there’s still no law criminalising the same. Even post Nirbhaya’s brutal rape and murder (in the infamous Delhi gangrape of 2012), the Indian Penal Code overhaul couldn’t touch the sanctity of marriage and a husband’s right to force his wife within it.
Since marriage is perceived as a sacred union in India, marital rape cannot be brought within the purview of the law on rape. These were the sentiments conveyed by Haribhai Chaudhary, Indian Minister of State for Home Affairs, in the Parliament in 2015.
The most recent development which happened this week, the High Court of Delhi’s judgement, is no different. The judgment was split, while one justice affirmed the criminalisation, the other denied it saying that, “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, apparently, forced sex is part of a “healthy sexual relationship”.
A closer look at Indian laws show how blanket the impunity on forced sex within a marriage is. The exemption granted to husbands under Section 375 of the Indian Penal Code (IPC), exception 2, says that “sexual intercourse or sexual acts committed by a man with his wife, wife not being under 15 years of age, is not rape.”
And, take the provision to restitute conjugal rights. Not only do these legalise abuse under certain situations (within a marriage), but they also reinforce that the “consent” of the woman is immaterial for sexual intercourse, as long as it is her husband who is forcing himself on her.
Do You Know Of The Restitution Of Conjugal Rights?
Let’s take the lesser-known “restitution of conjugal rights” matter. Section 376 B of the IPC does criminalise 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 the 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 solemnisation of marriage.
It is worthwhile to note here that although in India such provisions remain valid under the Hindu, Special and Muslim marriage acts, it has been done away with (in 1970) in the UK (the feudal British legal system is quoted as the origin of the law in the first place).
I have discussed this and more such legalities and loopholes are discussed extensively in Beyond #MeToo (Sage Publications), but I want to take a different approach here, deep diving into the “why”.
Why? What are the concerns here that allow for a society to completely nullify autonomy of bodily rights for adults (read: women) again and again, when its origin has been done away with, in the post Nirbhaya, post #MeToo, “woke” India?
Below are the arguments often found on scouting the Internet. I choose to tackle them here, and not the legal discussions around sanctity of marriage, as I feel it’s more important to try and change the moral fabric of the society (of everyday people like us).
If that could happen, changing the minds of the judges might get easier. And, I will try to do so as a simpleton, at the risk of oversimplifying, for it is indeed quite basic.
Does The Husband Have 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 grounds for divorce. 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!
Anyway, let’s leave that aside and think about this: there are many things in life that can be considered to be our rights, but since life isn’t fair, we are often deprived of those. Does this mean that we can grab our dues by force? Or do we still need to follow a legal, civil recourse?
If my month’s pay is being held up by my employer unfairly, can I beat up my bosses to give it to me? Will that be legal? It is indeed that ridiculous of an argument that we have been letting ourselves get away with in the case of marital rape.
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!
Is There No Other Solution Except To Force Her?
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 okay with non-consensual intercourse? By force?
Which one do we think will be a bigger issue to the fabric of our existence? Women who non-violently “punish” men by allegedly 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: does anyone else who we believe is being mean, unkind, downright evil to us, be forced into anything physical by us?
Then, why is this particular enforcement and retaliation justifiable for one’s spouse? Can I physically assault my evil cousin (or colleague), or an in-law, who is deiberately creating disruptions in my life? Will the law ever be okay with such a thing? No, right?
Why Does My Wife Not Want Sex When She Is Married?
This one is probably the most interesting, for it shows how naïve we have let our society be, 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, maybe, 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 it’s okay just to have one not enjoy being in it and yet to have them participate in the act?
Many men don’t realise that pleasuring a woman might be more difficult 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, there are only two options to choose from when a woman is seeking out a different sexual partner: choosing to refrain using other means for fulfilling her urges, or in her expressing unsatisfied needs.
The husband might either take it personally (“Am I not man enough?”) or blame it on her “character” (“You’re a slut!”). Many women I spoke to claim emotional alienation, pain, physical ailments, lack of energy, and general dissatisfaction with the act (of sex) 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 a “healthy sexual relationship” as the judge called it?
And, this is the problem—with decriminalisation of marital rape, the message to the society is that mutual fulfillment is not the goal, but forcing one’s “right” is.
Will Husbands Be Falsely Accused Of Rape?
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 (to do with harassment for dowry), men will be widely victimised. This one completely baffles me.
For this says, any crime that is difficult to prosecute, should be decriminalised. Otherwise, it might victimise the innocent. So murder, during riots or mob actions, no matter how violent, should be legalised as it could be argued that it will be difficult to prosecute, according to this argument.
Won’t Men’s Needs Be Met Otherwise?
It creates a solution for men whose needs wouldn’t otherwise be met. No, it doesn’t! I am on the side of the men here. Most men who need the assistance and safeguarding from emotional abuse, deprivation, victimisation here, won’t be the ones forcing themselves on their spouses.
By creating this haven, we are protecting perpetrators and safeguarding those (mostly men) who will be willing to 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 words like “spouse”, “partner”, and so on, wherever there’s a realistic possibility of the affront being mutual.
However, more often than not the aggressor here is male (there have been valid cases of men being raped by women too, but we will be kidding ourselves if we try to pretend that’s what we are trying to talk about in the context of marital rape).
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 decriminalisation of marital rape.
Please, let’s change this! No human should be able to force another into an act the other doesn’t consent to. It is against humanity and it should be against the law.