Nothing depicts the mess that sex in India is where consent is concerned better than India’s current status on marital rape and spousal sex. India’s legal system largely models sex within marriage as a right, not choice.
Since marriage in India is perceived as a sacred union, marital rape cannot be brought within the purview of the law on rape.
— Haribhai Chaudhary, Indian Minister for State of Home Affairs, 2015.
As Flavia Agnes summarises in one of her articles on this matter, “Hindu marriages ceased to be sacramental more than half a century ago and Muslim marriages were always contractual in nature.”
However, the bigger problem with the two current legal provisions that grant men impunity on rape and forced sex within a marriage – exemption granted to husbands under Section 375 of IPC (exception 2: sexual intercourse or sexual acts committed by a man with his wife, wife not being under 15 years of age, is not rape) and the provision to restitute conjugal rights – is not only that it legalises abuse under certain situations (within a marriage) but also that it reinforces “consent” of the woman to be immaterial for sexual intercourse as long as it is her husband who is forcing himself on her.
Let’s take the lesser-known “restitution of conjugal rights” matter. Section 376B of IPC does criminalise non-consensual act of sexual intercourse of a husband with his wife who is living separately (whether under a decree of separation or otherwise). However, what essentially nullifies this protection is the fact that Section 9 of the Hindu Marriage Act (and Section 22 of Special Marriage Act) grants the right to either spouse to file a petition in a matrimonial court to restitute conjugal rights if abandoned by a spouse after solemnisation of marriage.
It is worthwhile to note here that although in India such provisions remain valid under Hindu, Special and Muslim Marriage Acts, it has been done away with (in 1970) in the UK (feudal British legal system is quoted as the origin of the law in the first place). For legal disputes around this matter, including debate on the benefit and intention of this law (note: at the time of this writing, a PIL17 was in progress to be heard by a special bench of the Supreme Court arguing for abolishment of the provision on the grounds of it being against Articles 14 and 15 of the Constitution), multiple articles can be found, including the few cited below.
But I believe that more useful information for analysing India’s grasp of the concept of consent comes from reviewing the comments on articles reporting on a woman filing to block her estranged husband’s filing of restitution of conjugal rights on her, like pictures that are worth a thousand words.
The woman in the case in point is living separately from her husband and has made it amply clear by the act of filing a plea with the Supreme Court that she doesn’t want to have a conjugal relationship with her spouse. However, below are two examples (chosen from a Times of India article on the matter – representative of many other such) of the what most men interpret as just in this case.
“Prenups should be made mandatory by law to secure men from greedy women who get divorce after few years of arranged marriage, get entitled for alimony and go live with their boyfriends without a matrimonial bond, and husband has to pay her alimony for his life.”
“Does sexual autonomy imply she can sleep with anyone she feels like. Gets divorce and alimony. And repeat the process with another man. It will be very good business model! Prostitution is at least honest!”
The elephant in the room here is the fact that even if it is true that the woman’s motivation in this (or in undertaking of similar actions) comes from a place of no particular grievance and is just a matter of not wanting to engage in a physical, or otherwise spousal, relationship with her husband, ‘”it is still her wish”. Forcing her consent through a state mechanism is still an assault on her autonomy and is not a viable position, no matter how wronged, a spouse should be seeking.
Marriage doesn’t grant consent for a lifetime, nor is consent a one-time matter. In libertarian civic societies, forcing anyone into sex is wrong, no matter what the reason is.
The wronged spouse can file a legal suit to refuse alimony, nullification of marriage or even damages. But when a spouse (male in most cases) feels entitled enough to consider state-aided coercion as just a means to sex, there is a profoundly disturbing problem. This is in no way anything other than considering another human being inferior and equivalent to personal property.
When engaging in intercourse, such a person would be doing so knowing very well of the lack of consent of his partner, and yet wouldn’t mind going forward. It is further problematic that this fact is lost on authorities and commoners alike in India.
To address the second commenter’s question: Does sexual autonomy imply she can sleep with anyone she feels like? Yes. That is a lesser problem than him sleeping with someone who doesn’t feel like sleeping with him. The problem is that most men feel that sex is something that is owed to them, and if they are virtuous, marriage is what it is owed to them through.
Furthermore, many men don’t realise that pleasuring a woman might be more difficult than the pleasure they are getting out of the act of sexual intercourse. The biology of this is never taught to them and, therefore, they can’t comprehend a woman having sexual urges that remain unsatisfied with her current partner.
Thus, there are only two options to choose from when a woman is seeking out a different sexual partner, using other means for fulfilling her urges or is expressing unsatisfied needs: Either take it personally (I am not man enough) or blame it on her “character” (she is a slut). The 2019 movie Veere di Wedding, for example, very genuinely depicts a woman’s husband wanting to divorce her for her mere act of using a sex toy, for he considers it equivalent to adultery.
However, in the kindergarten of mutuality when it comes to sex, this is too far advanced a concept to grasp for men who have grown up without a healthy understanding of sex and gender equality in physical pleasure.
Excerpted with permission from Beyond #MeToo: Ushering Women’s Era or Just Noise?, Tanushree Ghosh, SAGE Publications India/SAGE Select
