Anita Anand | Rape within marriage: The grey area over consent

Of the 4,169 women who experienced sexual violence, 82 per cent said the perpetrator was their husband

In 2022, India is one of the 36 countries where it is not a crime for a husband to rape his wife. By 2019, 150 countries had criminalised marital rape.

In Indian law, under the exception to Section 375 of the Indian Penal Code, sexual intercourse between a man and his wife, if she is over the age of 15, is not rape. Recently, this was challenged by petitions to the Delhi high court and after hearings, a week ago, a split verdict on the issue of criminalisation of marital rape was given. The case will now go to the Supreme Court.

How prevalent is sexual violence in marriage? In the National Family Health Survey-5 (NFHS-5), conducted over 2019-20, women between the ages of 18 and 49 (who were currently or previously married) were asked about different types of violence they faced from their spouse. The responses suggest that one in every 25 women — often or sometimes — experienced sexual violence by their husbands.

Of the 4,169 women who experienced sexual violence, 82 per cent said the perpetrator was their husband. Of this, 84 per cent said their husbands “physically forced them to have sexual intercourse with him even when they did not want to”. This falls within the Indian Penal Code’s definition of rape.
Why then is it so difficult to talk about marital rape in India? And why is it important to seek legislation on it? Let’s start with marriage. In arranged, love, or arranged love marriages, it is assumed there will be sex, for procreation, and pleasure.

Young men and women in India have little knowledge of their bodies. Families don’t talk about it, as parents themselves are uncomfortable or lack the knowledge, language, and way to approach the subject. Schools have been reluctant to accept sex education curricula and often opposed it. Most young people, studies suggest, learn about sex and sexuality from pornography and friends.

Opposition and reluctance to sex education is based on the belief that if young people are taught about sex and sexuality, they will want to have sex, and that is not acceptable to our social mores. But young people are having sex, often without protection, or knowledge of their bodies or consequences of their acts, emotional and physical.

Parents are keen that their daughters marry so they will not have to be responsible for them. Sons are married, so they do not stray, sexually. Young men are socialised to believe that proof of their manhood is by having sex with their wives on the wedding night. For many women, not prepared for their marital duties when it comes to sex, marriage night is a rape night.

Rape, sexual assault, and sexual abuse have different legal definitions. In general, they are all forms of violence in which there is sexual contact without consent — and includes vaginal or anal penetration, oral sex, and genital touching.

Consent is tricky business. The #MeToo movement brought attention to the complex issue of consent. In intimate relationships, technically, consent is when one person agrees to or gives permission to another person to do something. It means agreeing to an action based on knowledge of what that action involves, its likely consequences and having the option of saying no. In the Indian context, often these factors are missing. Therefore, the notion of consent gets somewhat blurry.

Globally too, there are attempts to speak to the nature of this complexity. The UK has attempted messaging that likens consent to a cup of tea, based on the idea that you wouldn’t force someone to drink a cup of tea they didn’t want, just because you made it for them.

Back to the NFHS-5, where now 80 per cent of women participants believe that refusing sex to their husband is justified for any or all these reasons — if he has a sexually transmitted disease; he has sex with other women; or because she is tired/not in the mood. As many as 66 per cent of Indian men agree. And the percentage of adults who agree that women have a right to refuse sex to their husbands for all three reasons has increased by 12 per cent for women and three per cent of men from the last NHFS-4 (2015-16). This is progress.

The question is: will a law on marital rape be effective and address violence against women, or could it go the way of other laws passed over the last three decades — sex determination tests (to curb male child preference), sexual harassment in the workplace and the prevention of child sexual abuse — where women eventually end up bearing the brunt of speaking out, without satisfactory outcomes?

There is evidence that women often stay in violent relationships as they have nowhere to go and are afraid they will lose the roof over their heads and their children. Many are not economically independent and there are not enough systems in place for halfway houses or counselling for abused women.
The call for criminalisation of marital rape stems from a social movement, with collective agency. Here, the law is a first step. Multiple steps are needed to ensure that women have individual agency to be able to consent in sexual relationships in marriage.

Without the necessary complementary efforts in sex and sexuality education in the family, schools, institutions of higher learning, the workforce, the notion of consent to sex in marriage will be a pipe dream.

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