Marital rape and the socialisation of sex – is there room for consent? 

The article below is the part 2 of a two-part series discussing the legal and social perspective on the rape and specifically marital rape. This article focuses on the social and medical aspect of marital rape.

TW: Rape, abuse.

During a conversation with her granddaughter, Lakshmi* had to answer some inquisitive questions that came up. Her granddaughter wanted to know more about her thatha (grandfather). Little did she know that she would reflect on what she now understands as a painful memory. “Back in the day, we weren’t allowed to even look at our husbands directly.. We were there to serve them and nothing else. I know thatha wanted to speak to me but he would always be bullied by his peers for doing so. We were never allowed to sleep in the same room. I would sleep in the kitchen with the rest of the women of the household and thatha on the porch. The nights he wanted to use me, he’d pick me up from the kitchen and take me to the backyard. It used to be painful but that was what ought to be done. I didn’t know anything more.” She tears as she goes back a little in time. Her granddaughter, a little confused at what she just heard, asks her paati about her thoughts on marital rape. Lakshmi by now knows that what happened to her was not okay. 

Lakshmi’s story is only one of several. Most women, especially older women don’t have the chance to reflect or understand what happened to them. To them, pain was normal. Tolerance made a good wife. It took me a while to understand that marital rape is barely spoken about and operates in disguise through multiple layers of culture and socialisation. As Bell Hooks says, being oppressed means the absence of choice. And that’s the unfortunate reality for many women, added with other layers of structural trauma and violence if that woman is in the margins of the society.  

Marital rape is often hard to comprehend because marriage is perceived to be a contract of permanent consent. Combined with the perception of sex as a source of procreation and not pleasure, it is considered the duty of the woman to procreate and hence adhere to the forces of the husband regardless of how painful it is. While speaking to women about their understanding of marital rape, it was seen that it was understood only in retrospect. Dutiful wives have never had the chance to even think of sex as a form of pleasure, as something that they can have a say on. Sex is normalized as unconsented and painful. It doesn’t help at all when the state doesn’t recognize it to be a problem as well. It is trauma that has been and still is silenced and carried over for generations. 

Vidhya Dinakaran, a mental health professional at International Foundation for Crime Prevention and Victim Care (PCVC) says, “The families, sometimes even the woman herself, feels so guilty for having felt uncomfortable that they don’t even want to recognize it as intrusion let alone rape. So ingrained is the notion of what a woman needs to be.” She further adds, “Marital rape is undermined due to shocking assumptions that in a marital relationship sex is a given and that it falls under the roles and duties of a being. It also reiterates the toxic notion that men are owed the sex they demand, if they are to become the ‘provider’ for the woman after marriage. By attaching no recognition to this, the ideas of ownership experienced by the perpetrator and the misogyny is only bolstered. Let alone laws, humiliation and family honour attached to this instills fear and provides no space for condemning this act. This presents as a disguised evil that strips a woman of her dignity hiding under the misconception that, marriage forever equals consensus and reinforces the socially constructed idea of roles and duties.”

Sexist socialisation that roots from patriarchy have clouded the way we understand sex and pleasure. Part of understanding patriarchy is also that it operates in several layers and multiple intersections. It is upheld by powerful cultural norms and is sustained by education, tradition and other systems. This seeps into how we have taught to understand romantic partnerships and our right to consent and determination.

Women have been conditioned to put love, selflessness and care before anything else. So when it comes to sexual intercourse within a marriage, tolerance is what is taught to young women. It is that pain is inevitable. So, rape within the structure of marriage in many contexts has been unfortunately normalized. It allows no room for dissent and no protection for the pained. I can’t help but wonder, if men were socialized to desire love as much as they were taught to desire sex, the cultural revolution we would witness. 

*Lakshmi is a fictionalised name

The writer of the article, Meera Viswanathan, a mental health professional, is part of the Board of Directors in the MSAAW Foundation.

Is it not rape?

TW: Rape, abuse

At the outset, it is helpful to remind ourselves of what is the definition of ‘Rape’ which is duly recognized by Indian law as an offence under Section 375 of the Indian Penal Code, 1860 (IPC) –

It says, “a man is said to have committed the offence of rape if he has sexual intercourse (of defined description) with a woman under the following 7 situations:

  • Against her will
  • Without her consent
  • With her consent, when her consent has been obtained by putting her in fear of death or of hurt of her/her loved ones
  • With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
  • With her consent, when, at the time of giving such consent, by reason of unsoundness of mind/intoxication or under influence of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
  • With or without her consent, when she is under 18 years of age.
  • When she is unable to communicate consent.

On a simple reading of this provision, the use of the word ‘CONSENT’ is observed 10 times and is found to be so very explicit in every single line of the definition.

The conundrum that married women in India face is that even though a woman’s will and consent is given so much importance under the definition of Rape, how does the concept completely disintegrate when a woman is married?

This is seen in the exception defined under the same Section 375 which stipulates that sexual intercourse by a man with his own wife is not Rape. The only saving made under this exception is that it does not include any wives under 15 years of age. Pertinently, this has recently been judicially read down in 2017 to include all wives under 18 years of age through the Supreme Court’s ruling in Independent Thought v. Union of India.

This exception of sanctioned sexual intercourse (even against the will and without the consent of the wife aged above 18 years), is further elucidated when we look at the provision included into the IPC by amendment in 2013: it says that it shall be punishable if a man has “sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent.”

So, when a wife is living separately from her husband, the concept of her consent gets reinstated! Although this is a saving grace, it goes to highlight that the rape laws of India have completely taken away the concept of consent from a married woman who is not separated from her husband.

The reasoning can be found in the words of the Law Commission of India, which in its 42nd Report said:

Sexual intercourse by a man with his own wife against her will or without her consent be not called Rape even in a technical sense.” Their rationale was, “this may amount to excessive interference with the marital relationship.”

While citing the above observation by the Law Commission, Prof. K.I. Vibhute from the University of Pune explains this parochial and familial ideology of the rape laws as follows:

“It is believed that the husband’s immunity for marital rape is premised on the assumptions that a woman, on marriage, gives forever her consent to the husband for sexual intercourse. Her husband has the right to have sexual intercourse with her, whether she is willing or not, and she is under obligation to surrender or submit to his will and desire. It also aims at the preservation of family institution by ruling out the possibility of false, fabricated and motivated complaints of ‘rape’ by ‘wife’ against her ‘husband’ and the pragmatic procedural difficulties that might arise in such a legal proceeding.”

This reasoning by the Law Commission is definitely based on an expired thought process. Pitifully, similar reasoning has also been cited by the Supreme Court in the case of Bhupinder Singh Vs. Union Territory of Chandigarh. Here the court said that if a woman is in a void marriage with an already married man, then sexual intercourse by such man with her shall be considered Rape. This again highlights that only married women in valid marriages are not capable of being raped. So, a woman who finds out she is in a void marriage is in a better position to obtain remedy from the courts than a woman who is ‘validly’ married to a man who rapes her. How different is it from marry-your-rapist theory?

The Indian lawmakers have always buried the horror of marital rape under the ambit of sanctity in a marriage. If one must go into the debate of sanctity, how respectable and sanctimonious is a marriage if the husband’s actions strip the wife of every last bit of a her dignity? The preservation of the ‘family institution’ gives free reign to the husband and allows for incessant, unchecked and fully licensed sexual abuse of the validly married wife. This even allows grave violation of her fundamental right under Article 21 of the Constitution of India which grants even a validly married wife the right to life and personal liberty including the right to live with dignity and without harm.

It needs to be remembered that a marriage is essentially only a legally recognized union of two people as partners in a personal relationship which involves sexual activity and intercourse. What needs to be very clearly distinguished is that marriage is not another name for any kind of permanent and irrevocable consent by a wife to her husband for any and all sexual intercourse, and she definitely does not ‘surrender or submit to his will and desire’ in any blanket and all-encompassing manner for his whims and fancies. Merely because of the fact of marriage, a married woman does not lose her individuality and therefore cannot lose her right to give/revoke/refuse consent for sexual intercourse, even with her husband.

One of the biggest misconceptions which exist in the Indian mindset is that within the relationship of marriage, there is an unchecked license held by all men for having sex with their wives. The general population does not seem to comprehend the difference between the act of ‘sex’ (or sexual intercourse) and ‘rape’. We need to remind everyone that sex does not equate to rape, and rape does not equate to sex. Rape is the act of sex being done without the consent of the partner. So, the act of sex with a wife by a husband without HER CONSENT is Rape. This amounts to rape in every aspect of the offence and the Indian public as well as the lawmakers need to take note.

According to the latest report of National Crime Records Bureau in the year 2017, the total number of crimes committed against women in that year were 3,59,849. The total number of rape cases reported over the three year period from 2015 to 2017 were 34,651, 38,947 and 32,559 respectively. The total number of attempted rape cases reported were 4437, 5729 and 4154 respectively. However, we submit that these statistics provide a deceptive portrayal of the rape statistics in the country. This is because a huge population of married women who are being raped in the country have been completed avoided and rape crimes against these women are not even recognized.

When we do criminalise marital rape, it is reasonable to expect that there will be certain problems in implementation. However that is no reason to tolerate the continuance of horror and violence of rape against married women by their husbands. Some of the problems which can be foreseen include the difficulty in collection of necessary evidence, personal agendas for false complaints, misuse of the law for harassment etc.

However, these problems are no different from the problems encountered during the implementation of all laws in the country. Do we not find murder cases like Arushi Talwar where evidence collection and ambiguity of circumstances were a challenge? Do we not see cyber crimes which are nearly impossible to detect? Have we not come across personal agendas for false complaints in cases of political crimes and corruption? Do we not encounter the misuse of law for harassment of commercial sex workers and the LGBTQ+ community? Have these problems prevented us from enacting the necessary laws? NO.

Marital rape is similar. Awareness is a necessity and criminalization of this form of Rape is indispensable.

This post is Part 1 of our Day 6 of #16days of activism. The authors wish to remain anonymous.