In a path-breaking statement yesterday, the Delhi High Court observed that marriage does not imply blanket consent for physical relations from a wife, and that rape does not necessarily constitute the use of physical force. The bench also observed, and rightly so, that in a marriage, both the husband and the wife have the liberty to say no to sex when they wish. These statements are heartening indeed, what they do is remove the institution of marriage from the umbrella of blanket consent that has been the imposition of the patriarchy.
To quote the Delhi High Court Bench, “Marriage does not mean that the woman is all time, ready, willing and consenting (for establishing physical relations). The man will have to prove that she was a consenting party.” The court added, “It is incorrect to say that (physical) force is necessary for rape. It is not necessary to look for injuries in a rape. Today, the definition of rape is completely different.”
India is one of the few countries in the world where marital rape isn’t a crime, where the concept of consent for sex seems to be a blanket one, irrespective of mental state of mind or physical health, when one gets married.
More often than not, it is the woman in a marriage who is compelled to submit to sex, whether she wants it or not at that moment, just because she is married to the man. Marriage, an institution to maintain societal stability and make paternity irrefutable, when it was introduced, has remained blanketed in the mores of the times it was brought into force, even while sexual freedoms, the pill and feminism have done their bit to liberate women from the shackles of being ‘property’ and that too, reproductive property.
Society has changed a lot since those days when men weren’t sure of being progenitors of the offspring they would have to support till maturity and therefore needed a commitment of exclusivity with a partner. Women are financially independent these days, one parent households are common, as are live-in relationships, open marriages are more common that one would think, and more people than ever before are deciding consciously to not get married. The concept of consent within a marriage, you think would have evolved too, but sadly it hasn’t.
Women are financially independent these days, one parent households are common, as are live-in relationships, open marriages are more common that one would think, and more people than ever before are deciding consciously to not get married.
While the concept of consent has been under much debate and has been evolving over the past couple of decades, active consent is now considered vital. In some countries, the withdrawal of consent even during the sexual act means that the partner would have to stop. Marriage, however, has sadly been stuck in the dark ages as far as the concept of consent goes, within its blanket boundaries. There simply is no concept of consent in most marriages. The fact that a man is married to a woman in a majority of cases is seen as a licence to sex, anytime, anywhere, regardless of the woman’s consent.
Post the #MeToo movement, the debate over consent and coercion, and consent based on power has taken centre stage across the world. In bedrooms across the country, though, nothing much seems to have changed. Conjugal rights, as inscribed by law, could be read as a blanket permission towards sexual intercourse post marriage, and the lack of a law criminalising marital rape was a glaring omission in the laws which sought to tackle sexual violence against women more stringently. The government had refused to criminalise marital rape saying it would threaten the institution of marriage. For every wife who has just given in to sex, because the husband simply would not accept a no, this is the acknowledgement that she has no agency over her body anymore.
For every wife who has just given in to sex, because the husband simply would not accept a no, this is the acknowledgement that she has no agency over her body anymore.
This is where these statements by the Delhi High Court offer much hope. Marriage is not consent. Marriage is a social contract entered in by two individuals, right now limited between male and female in our country. It is not a blanket permission for sex.
Most women are brought up on the socio-cultural brainwashing that refusing their husband sex is the most terrible thing they can do in a marriage. A husband refused sex is a husband wronged, and by the very act of refusing to have sex with her husband, even if it is a situation that is a one-off, a woman gives her husband reason and due cause to be unfaithful. If a man is unfaithful, the woman is often asked, did you deny him sex, because what other reason could there be for a man to stray, except the lack of an outlet for his burgeoning hormones.
A husband refused sex is a husband wronged, and by the very act of refusing to have sex with her husband, even if it is a situation that is a one-off, a woman gives her husband reason and due cause to be unfaithful.
However the debates in our courts play out, we women would do well to keep reminding ourselves that we do have sole agency over our bodies, married or unmarried. That consent is what we have to keep reiterating and we need to own our sexuality. That consent is important and that marriage is not blanket consent. That both men and women have the autonomy to refuse sex when they don’t want it, for whatever reason, and this is part of bodily agency. The power equation in a marriage often skews and imbalances this consent and agency. A no does mean no, whether within a marriage, within a relationship or not, and prior sexual relations with the person does not negate a person’s autonomy to refuse sex. That rape is not always violent, and that intercourse without consent, whether married or not, is always rape.
Kiran Manral is Ideas Editor at SheThePeople.TV