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HomeOpinionPoVMilord, marriage isn’t consent for life. But judgment on marital rape is...

Milord, marriage isn’t consent for life. But judgment on marital rape is no surprise

The idea that rape by a 'stranger' and 'non-consensual sex' with the wife is different is ridiculous. But that's how India has always seen marriage.

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At some point in her life, every girl in India, the moment she ‘came of age’, has been asked to get married by her parents, relatives, the NRI chacha, the neighbourhood aunty, and every random person on the street. And this continues, generation after generation, despite the fact that marriage is predominantly a violent, regressive, and dangerous institution for many women. Nothing is bigger evidence of this than the recent Delhi High Court judgment on marital rape, where Justice C. Hari Shankar agreed to the marital rape exemption in criminal law, while Justice Rajiv Shakdher said it needed to go.

A line in Justice Shankar’s judgement noted that marriage is a “pristine institution of mankind, on which the entire bedrock of society rests”. Another one reads: “Sex between a wife and husband is…sacred.” These are just two instances where he upheld Exception 2 of Section 375 of the Indian Penal Code that decriminalised rape within the institution of marriage. But the sentiment of the entire judgement can be garnered from these two lines alone.

It’s not just Justice Shankar. The idea that marriage, of the heterosexual variant, of course, is a sacrosanct institution under threat from the criminalising of marital rape is a sentiment heard across the spectrum — from family drawing rooms to social media. Men, across Twitter and Facebook, are incensed by the idea that they could be arrested for raping their wives — or in their language, having ‘sex’ with her, no matter how forced it is.

The fact is that rape is rape, and it has nothing to do with ‘sex’. It is, essentially, an act of violence. But according to most Indian men, marital rape as a concept doesn’t exist within the sacred institution of marriage. A woman’s bodily autonomy and her consent are, therefore, irrelevant.

Also read: 82% women in India able to refuse sex to their husbands, finds govt’s family health survey

Marriage isn’t ‘consent for life’

Is it even surprising that an Indian wife is not considered an autonomous entity in marriage? An institution that is premised on the patriarchal idea of reproduction, with women seen as mere chattels, cannot offer more. In effect, the High Court judgment and consequent debates around it have actually revealed exactly how problematic the very foundation of marriage is.

“Marital rape is the most intimate of violations; it is also the form of violence against women that is most clearly sanctioned by the State, which specifies through laws and their implementation what sorts of violations are condoned and even expected,” write Kersti Yllo and M. Gabriela Torres in their book Marital Rape: Consent, Marriage, and Social Change in Global Context.

Throughout the judgment, the woman is referred to as the ‘wife’, not as an independent individual. Her identity is constantly assumed within the institution of marriage and collated with its perpetuation and inviolability. Justice Shankar even notes that being “ravished” by a stranger is not comparable to “non-consensual sex” between a wife and a husband. As a man, frankly, he cannot presume to understand what a woman goes through when she is raped, much less speak on it with authority. But the idea that these two experiences are somehow different, just because one of the men is a ‘husband’ is ridiculous. They are both men that are sexually assaulting women, and it should be just that. The fact that one assault occurred within a marriage is inconsequential here.

Point to note: There is nothing called “non-consensual sex”, it is rape.

Heteronormative marriage has always been the socially sanctioned masquerade that allows irrevocable consent and permanent sexual access to wives. As is evident, in India, a woman’s consent in the matter is barely acknowledged, as it is assumed that a husband has inviolable rights over the woman — a concept perfectly encapsulated by the Hindi word ‘haq’. Justice Shankar even mentioned it in his judgment. He says that if a husband requests her for conjugal relations, he is “well within his rights to ask for it.” And he even equates rape to be at par with “disagreements in a marriage”. Cue the ‘slapping my face’ emoji.

Also read: How HC judges differed on marital rape: One said ‘rape is rape’, other said spouses’ sex ‘sacred’

Why do we need marriage?

The biggest question, then, is — why do we need an institution that is basically founded on sexual violence against women? What is the relevance of such an institution that views women as tools for society before seeing them as human beings? Is it needed?

Not really. But then that is what Indian society is premised upon. The High Court judgment is just another nail on the wall in promoting structural violence against women, which has been legitimised by the State and the courts. The garb here is ‘marriage’. And it will always be ‘marriage’.

Srimati Basu in her book The Trouble With Marriage writes, “Feminist intervention in questions of marriage, body, sexuality, and violence is often…equated with the destruction of family, marriage, and love.”

I say, let it be destroyed.

Rachel John is an independent writer and editor. Views are personal.

(Edited by Humra Laeeq)

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