Is forcible sex ever okay?

- January 25, 2022
| By : Jayali Wavhal |

At a time when society is not yet ready to acknowledge the immorality of marital rape, the debate surrounding a law to criminalise marital rape is off to a slow start. The importance of a woman’s consent is yet to be universally accepted

Photo by: Asia Times

Since 7 January, a two-judge bench of the Delhi High Court has been hearing a series of public interest litigations (PIL) challenging the marital rape exception clause in Section 375 of the Indian Penal Code (IPC). The debate focuses on Exception 2, which states that “any sexual act performed by a man on his wife is not rape as long as the wife is not minor”. The petitioners want this exception to be struck down from Section 375, which otherwise defines rape as various acts done against a woman’s consent by force, fraud, or coercion, or to a woman incapable of giving consent.

“To have sexual intercourse with someone, you need their consent. If there’s no consent, we call it rape. So, why does a marital status decide if consent is required or not? Marriage is not the license to rape your wife”, says Vartika Doshi, a 24-year-old law student from Delhi. She calls the Indian law discriminatory and patriarchal. “It says non-consensual sex is rape but turns a blind eye to non-consensual sex between a husband and wife”, she remarks.

The debate surrounding marital rape has elicited opinions on its social, individual and emotional impact. It has raised questions about the importance of a woman’s consent to sex in a marital relationship. Akanksha Aggarwal, 27, says, “Just because I marry a man does not mean he can force me to have sex whenever he wants. I can be experiencing cramps or I can just be exhausted from a long day. So, if I tell my husband that I do not want to have sex on that particular day, he should respect my choice. He cannot force me to have sex.” 

When questioned about how a woman should handle the situation if a husband forces her for sex, Akanksha says she can seek help from family – which is “embarrassing because most family members think the husband is entitled to sex” – or she will have to go to the police. 

However, since India has not criminalised marital rape, it is difficult for women to turn to the legal framework for aid. Moreover, marital rape cannot be grounds for filing a divorce. Instead, women can use other social avenues to file a complaint against their husbands or file for divorce. Section 498A of the IPC (husband or relative of husband of a woman subjecting her to cruelty) is often used as a substitute clause in such cases. 

“Marriage nullifies the right to consent of a woman which further harms their dignity. Our constitution recognises the right to live with dignity under Article 21. But how can a woman live with dignity when she’s subjected to rape by her husband – a man she lives with under one roof?”, asks Mitali Chattopadhyay, a gender studies research student at Delhi University. She further adds that most women in developing parts of the country are not given the freedom to choose their husbands and are forced into a marriage as soon as they reach the legal age. “If the woman cannot even choose her husband, do we really think she can reject her husband’s request for sex?”

Sarika Devi Singh is a 23-year-old married woman who currently works as domestic help in Delhi. Hailing from Khujnawar, a small village in UP, she got married at the age of eighteen to a man whose face she had never seen before her wedding. She says she did not find him attractive at first, but he is very caring. 

When asked for her opinions on marital rape, Sarika says, “Marital rape does not exist. A husband and wife are in a sacred relationship approved by society. We have been taught that the duty of a woman is to serve her husband and sleeping with your husband is just one of these duties. A woman should adjust if her husband wants to do it (sex) rather than saying no. Karna padta hain. Else he will go have sex with another woman and the wife will be blamed for not fulfilling her husband’s desires.” 

Women with opinions like Sarika’s are too naïve to realise how normalised it has become to place a man’s desires and needs above their own. They are unaware of their right to consent, and instead, play their part in keeping the patriarchal values stable. Most women – from both urban and rural areas – don’t even recognise that they were raped by their husbands and their right to consent was compromised. Thus, it becomes extremely crucial to review the need to criminalise marital rape.

Last year in August, the Centre had informed Delhi High Court that marital rape can’t be criminalised as it will hurt the sacred institution of marriage and we should not follow western traditions blindly. Ironically, it was Sir Matthew Hale, a British lawyer and judge who had first said that marriage was a legal contract where ‘consent’, including that of the body, was implied. Thus, Hale’s ‘Implied Consent Theory’ stayed with India even after the British left. While the UK criminalised marital rape in 1991, India is currently one of the 36 countries where marital rape is legal.

Most men fear that if marital rape is criminalised, it will allow women to ‘misuse’ the law and falsely implicate men. As a result, the men’s advocacy group Save Indian Family Foundation (SIFF) has initiated a ‘marriage strike’ urging men to not marry until the debate on marital rape settles in their favour. 

Asma Qureshi, a social influencer, found this debacle “sadly ridiculous”. She says, “Men are more concerned about false cases than they are about women being forced to have sex. The number of false cases against men will be highly disproportionate to the number of marital rape cases that occur every single day but go unreported, unrecorded and undocumented. By going on a marriage strike, such men are doing us a favour by weeding themselves out.”

While the Delhi government, on 7 January, had stated that the reason to not criminalise marital rape is that it is covered under Section 498A as a crime of cruelty, another reason is the challenge in determining the value of evidence in such cases. Criminal lawyer KS Nidhi says, “Just because you think you can’t prove it doesn’t mean you can ignore the crime. The nature of the investigation and subsequent hearings will vary depending on the case. In most cases, signs of physical abuse direct the course of investigation and forensics will play an important role here. However, marital discord and the length and nature of in-law’s involvement in said marriage will be equally vital to determine the principal factors of the investigation.” 

The legality of marital rape was first challenged in 2015 in Delhi High Court by RIT Foundation. Seven years, several petitions and numerous unreported cases of marital rape later, the final hearing will soon be conducted and heard by a bench of Justices Rajiv Shakdher and C Harishankar. It now remains to see if the court will see marital rape for the crime it is and acknowledge the plight of several married women, or it will continue to place rape in different categories for different women. 

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