Of all things being equal in a marriage in India, sadly, sexual consent isn’t - Kiran Manral

Of all things being equal in a marriage in India, sadly, sexual consent isn’t. A lot of other things aren’t either, most times, but the very concept of sexual consent as being an integral part of the social and legal institution of marriage is absent. Marital rape is not a crime in India. Here's Kiran Manral in The Married Feminist

According to some reports, “It is believed that women in India are 40% more likely to experience rape from their husband than by a stranger.  It is also estimated that 10% of women in India experience sexual violence.” <1>

The fact is that in domestic violence situations, marital rape is often one of the key means of intimidating and subjugating a woman. This is because historically, marriage is considered to be a contract for conjugal rights and sexual intercourse.

Today marital rape is considered a criminal offense in most countries. It validates a woman’s right to her own body and all the matters concerned with it—empowering her with control over her body, sexually, emotionally, physically.

Physical force and coercion to enforce these rights is what constitutes marital rape. Marital rape is one of the many manifestations of the mindset which pre-supposes that a wife is to be subordinate to her husband, that her desire, consent and agency over her body is unimportant. The concept of her consent is a given, considering that it is within the confines of socially sanctioned and legal relationship. In most Western countries the advent of second wave feminism, led to a re look of the laws regarding marital rape. Today marital rape is considered a criminal offense in most countries. It validates a woman’s right to her own body and all the matters concerned with it—empowering her with control over her body, sexually, emotionally, physically.

In India, according to the Indian Penal Code Section 375 which deals with rape, it is not considered rape if it is a man and his legal wife, as long as she is over the age of fifteen. In 2012, the JS Verma committee set up in the aftermath of nationwide protests over the December 16, 2012 gang rape had strongly recommended that marital rape be criminalized. The UN Committee on Elimination of Discrimination against Women also recommended that the Indian government criminalize it. <2>

There are no statistics specifically for marital rape in India because it isn’t considered a crime. While it does get documented in hospital reports, it very rarely reaches a point where a police complaint is filed, more often than not it is one of the many points of conflict between husband and wife and not a standalone complaint by itself. According to a news report, “Of the 664 cases of women who reported domestic violence in 2015 at NGO Sneha’s crisis counseling center in Dharavi, 159 women also reported, among other issues, marital rape. At Sneha’s counseling centres at KEM and Sion hospitals, of 218 cases of domestic violence received in 2015, 64 women said they had faced marital rape.”  According to Dilaasa, a counseling centre based out of K.B. Bhabha Hospital in Bandra, “60% married women report sexual violence, forced sex being its most common form.” <3>

In fact, so common is sex without consent in most marriages that it is the norm rather than the aberration. When women go to report the rapes, they are told that this is a matter between husband and wife and they should resolve it as such. They have to return home and live with a man who considers it his birthright by virtue of having drawn the XY combination at birth to force himself upon a woman who is married to him, regardless of her consent. If she refuses, she can get divorced for denying sex. If she is raped, it is not considered a crime because it was her husband who did so.

So common is sex without consent in most marriages that it is the norm rather than the aberration. When women go to report the rapes, they are told that this is a matter between husband and wife and they should resolve it as such

Back in 2012, a High Court in India declared that denying a husband sex, for whatever reason was a form of abuse. The Supreme Court upheld this ruling, stating denial of sex was a valid reason for divorce. According to a parliamentary panel that discussed the possibility of amending Section 375, criminalizing marital rape would bring “the entire family system under great stress.” Statistics from 2015 state that 700 cases regarding rape by live in partners or separated husbands had been filed in just that single year. The Union Minister for women and child development, Maneka Gandhi, in 2016 stated that marital rape cannot have a law against it because marriage is considered a ‘sacrament.’ And no one would complain about marital rape. In a written reply to Parliament on the government’s plans to criminalising marital rape, she said, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty.”

We could put it down to the rigidly patriarchal ethos we come from. The male child is fawned over, the female child is often killed in the womb or at birth itself. “94% of rapes in India are committed by someone the victim knows and women are 40 times more likely to be assaulted by their husbands than by strangers,” says another report. <4>

But for all that we teach our young girls about agency over their body and consent in relationships, the worrying fact is that when they grow and get married, if they choose to do so, our laws do not allow them to get redressal if this agency and consent is violated within the framework of a marriage.