State duty to protect institution of marriage?


Harini Calamur | Updated on: Sunday, January 23, 2022, 11:24 PM IST

Representative Image |
Representative Image |

‘Marriage Strike’ was the hashtag that trended for a few days on Twitter. Behind the trend were angry and angst-ridden men who believed that their futures were being determined by feminists who were out to destroy the fabric of society by undermining the institution of marriage. They decided they would go on #MarriageStrike and not enter the Indian marriage market. This trend was hijacked by women all over the country, who celebrated the fact that they wouldn’t face the prospect of meeting such men in the marriage market. And it was all quite funny. But behind the inadvertent hilarity caused by the trend and the response to it, lies a very serious issue – does sexual consent exist within a marriage?

This debate around marital rape has been triggered by a case before the Delhi High Court on whether the clause in section 375 of the IPC, which allows men to legally rape their wives, is constitutional. The case, heard by a two-judge bench, has generated a fair amount of conversation and controversy around the nature of marriage and the nature of consent. And indeed, whether the law has the right to intervene in it.

‘Do you have the right to rape your wife?’ or ‘Is marital rape – or non-consensual sex within a marriage – a crime?’ is currently ruling the airwaves and cyberspace. And naturally, the arguments were heated on both sides. This is an issue that has polarised people across the middle, irrespective of other affiliations. It was very interesting to see the ultra-conservative man, who would otherwise clash on most other issues – unite across religious affiliations to oppose the exemption.

On one side are those who believe marital rape to be not only abhorrent, but also the ceding of a woman’s sexual agency to the husband after marriage. On the other side are mostly those who believe that the act of marriage allows a man sex on demand. Added to this is the question of how will you prove rape within a marriage? And finally, there are questions of what happens if there are false cases.

Section 375 of the Indian Penal Code, IPC, says that a man is said to have commited rape under seven different circumstances. The first two are against her will and without her consent. The rest deal with coercion, fraud or misrepresentation, intoxication, and inability to communicate consent. Finally, there is the question of underage sex – sex with females under the age of 18. There is only one exception to this definition of rape – and that is the rape of a woman by her husband within a marriage.

According to the National Family Health Survey (NFHS-5) , over 31 per cent of all married women, between the ages of 18 and 49, face spousal violence. This spousal violence is defined as both physical and sexual violence. Many activists believe that given the way our societies and families are structured and given the normalisation of the man’s authority on his wife – the number is likely to be higher. For many women, consent is never really sought by anyone, in any aspect of their life. For many, the physical and sexual abuse are just another part of everyday life that they have to bear, for the good of family and society.

On the one hand, there is the marriage structure, which is a part of every society in the world. This marriage structure, apart from esoteric considerations like love and romance, is supposed to deliver mutual support, well-socialised children and societal stability. For this ‘institution’ to work, individual rights need to take second place to the needs of others. We just have to look at our own families to see the sacrifices made by people, to ensure that others in the family benefit.

On the other hand, there is the Republic of India, which recognises and celebrates the rights of the individual. The state is supposed to ensure that the rights of individuals are protected, so that we can go about our everyday life in relative security. Should the Republic of India flush the rights of women down the drain to ensure ‘family stability’ or should it ensure the rights of the woman – when her agency and consent are violated – within the family or outside?

The role of the Indian state is not to protect the institution of marriage, it is to protect the rights of the individual. And therefore, the question here is very simple. Does the wife, the citizen of a republic, cede her fundamental right to be, when she gets married and do her consent and agency cease to matter? The answer here would be a resounding no. We continue to be citizens. Our rights matter.

A man who commits continuous violence on his wife – including physical, emotional, and sexual – is already undermining the institution of marriage. He is destroying the psyche of his family through brutalisation. His children grow up thinking this violence is normal, and it perpetuates a cycle of such normalised deviant behaviour. The way to save the family is not by giving exemptions to this behaviour, but by penalising it. Like all laws, there need to be safeguards that it is not misused. But we don’t excuse murder as a crime because we may put the wrong person in prison. The endeavour is justice and there can be no equality or justice for women if our consent is constantly violated.

The writer works at the intersection of digital content, technology and audiences. She is a writer, columnist, visiting faculty and filmmaker

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Published on: Sunday, January 23, 2022, 11:25 PM IST