Marriage is neither consent to sex nor impunity to violence, writes Sayantan Ghosh

In Indian society, marriage as an institution has never been on an even keel. Marriage has a power equation. Men with societal privileges consider marriage as a proprietary right to the life and body of their wives. This patriarchal structure has become so commonplace that everyone ignores the power struggle.

Sayantan GhoshUpdated: Wednesday, May 18, 2022, 09:20 AM IST
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According to the National Family Health Survey 5 (2019-2021) report, 18% of Indian women are unable to refuse their husband's sexual intercourse. | Representational Image/Pixabay

The Delhi High Court pronounced a split verdict regarding the criminalisation of marital rape on May 11th. This decision has reignited the debate over whether a married man can be exempt from rape despite violating his wife's consent. It is regressive to believe that the issue of consent will still be a topic of discussion in 2022. The need for legal review of the verdict has a larger context. The matter will now go to the Supreme Court of India. But it is time to make one point straight: a marriage agreement is neither consent to sex, nor a free pass to violence.

A two-judge bench of the Delhi High Court pronounced the said verdict. The Honourable Justice Rajiv Shakdher struck down the exemption to Section 375 and termed it unconstitutional. It follows that IPC 375's exception 2, which states that sexual intercourse between a man and his wife is not rape, is unconstitutional. Meanwhile, Honourable Justice C Hari Shankar ruled against striking down the exception.

The fight for women's bodily rights has been going on across the globe for decades. In some cases, success has arrived, while in others, it is still a long way off. The struggles vary from country to country. In 2021, the Higher Islamic Council in Lebanon approved the family law amendment and ended child marriage. Today in the US, people are protesting to retain the legal right to abortion. Every institution, from the government to the judiciary, should be more pragmatic in deciding on issues concerning the protection of women's bodily rights in such a time.

In Indian society, marriage as an institution has never been on an even keel. There is no doubt that there are exceptions. But, in general, marriage has a power equation. Men with societal privileges consider marriage as a proprietary right to the life and body of their wives. This patriarchal structure has become so commonplace that everyone ignores the power struggle.

This power equation is not limited to bodily rights but extends to intellectual rights and freedom of expression. Most women are scared to express their real emotions in marriage. This mindset of curbing women’s voices is ever-increasing in India.

For example, according to the legal database published by the Article 14 web portal, "Since 2014, when the Bharatiya Janata Party (BJP) came to power, there has been a 190% increase in the number of women charged with sedition. An artist, a filmmaker, an academic, an Adivasi, an activist, a student, a homemaker, and a politician were among these women."

The reality of Indian marriages is that the majority of women do not express their wishes. It is more important to ensure their right to consent in this situation than to remind the husbands of their privileges. According to the National Family Health Survey 5 (2019-2021) report, 18% of Indian women are unable to refuse their husband's sexual intercourse.

An article written based on the NFHS finding by Parvathi Benu at Business Line noted, "Of the 4,169 women who are (or used to be) married and have experienced sexual violence, 82 per cent said that the perpetrator was their husbands. Of them, a large majority (84 per cent) said that their husbands physically forced them to have sexual intercourse with them even when they did not want to. This is similar to the IPC’s definition of rape."

The article also pointed out, "Wealth and education also played a major part, the survey revealed. For instance, 7.2 per cent of married women with less than five years of schooling have faced sexual violence from spouses. However, among the women who had 12 or more years of schooling, it was just 2.9 per cent. Also, 10.2 per cent of the married women from the lowest wealth quintile faced sexual violence from their husbands, while among the richest, it was only 3.1 per cent."

Similarly, according to a story published on the India Today website, "The NFHS findings highlight that for nearly one-fifth of India's married women, their consent in sexual relations with their husbands is compromised." The same survey pointed out that around 6% of men aged between 15-49 believe that they have the right to get angry with their wives. They also believe it is acceptable to refuse financial assistance. According to the survey, over 6% of men aged 15 to 49 believe it is normal to forcibly have sex with their wives and to have sex outside of marriage if their wives refuse. The NFHS data showed that around 20% of men, combining all age groups, believe that they have the right to punish their wives.

It is important to understand that when a couple agrees to marriage, they choose a life together. This decision on marriage is no consent to sex. The notion that marriage is a by-default consent to sex is ridiculous. It implies that rethinking the entire institution of marriage is necessary at this point.

Men cannot have authority over their wives' lives and bodies. A woman's bodily integrity should be protected both inside and outside of marriage.

Similarly, it is regressive to even consider that marriage is an agreement where the husband will have the right to be violent against the wife. From individuals to the government to the judiciary, one idea must now prevail: consent is preliminary to having sex, whether inside or outside of marriage.

(The author is an independent journalist based in Kolkata and a former policy research fellow, Delhi Assembly Research Centre. Views expressed are entirely personal. He tweets as @sayantan_gh)

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