Split Verdict On Marital Rape: Is Marriage’s Sanctity Based On Women’s Oppression?

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Two landmark judgements recently hit the headlines—one was the Supreme Court judgement on the momentary suspension of Sedition laws. While the other was the Delhi High Court’s, May 11 split verdict on the criminalisation of marital rape. While Justice Rajeev Shakdher held that Exception 2 in the rape law under Section 375 of the Indian Penal Code is “unconstitutional”; Justice C Hari Shankar on the other hand said that the exception is in the public interest and isn’t unconstitutional.

Justice Shankar was quoted as saying, “The Marital Rape Exception, far from being unconstitutional, serves a laudatory purpose, and is in the pre-eminent public interest, aimed at preservation of the marital institution, on which the entire bedrock of society rests.”

What do we make out of an institution when it’s based on the oppression of one partner? Why is marriage worth preserving when the institution is dependent on upholding marital rape?

According to the United Nations Women report, India is one of the 34 countries that is yet to criminalise marital rape. Social media a little while ago was flooded with men declaring a marriage strike if marital rape was to be termed a criminal offence.

Is the institution of marriage only a legal sanction to avail sex? If marriage is not just about sex, why are people opposed to the idea of criminalising marital rape?

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If this weren’t enough, Justice Shankar had also said that a woman who is sexually assaulted by her husband does not feel as much pain as a woman who was assaulted by a stranger. He said that a man is just exercising “a right that vests in him by marriage” and added that having sex without their partner’s consent is wrong but “it cannot be equated with the act of ravishing by a stranger.”

“Any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to feels the same degree of outrage as a woman raped by a stranger, in my view, is not only unjustified but is ex facie unrealistic,” Justice Shankar said.

What are we women for men? Commodities to fulfil their carnal desires? Does our consent mean nothing at all? Why is it difficult to understand that whoever may be the perpetrator of a crime, results in trauma that is life-altering?

Living as a woman in a patriarchal society is difficult. Women are constantly subjected to second-grade treatment, slut-shaming, chauvinism and whatnot. The reprimanding of women for anything that men do begins with primary social institutions like families, and schools and just spills further into other relationships including marriage.

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When a man as learned as Justice Shankar says that the marital rape exception is not unconstitutional, the statement is bound to have repercussions and the ones bearing the brunt of it all will be women.

Every day, there are countless reports from all corners of India on violence perpetrated against women; with each headline, the reports get more disturbing. Amidst increasing violence, including sexual aggression, against women, how conducive is it to pass a decree saying that marital rape is not a crime?

Exception 2 under IPC 375 does not only deny a woman bodily autonomy and independence, it seizes their dignity by allowing them to become objects of violence in marriages. It’s 2022, and women in India are still fighting the battle to be recognised as individuals and for our basic rights for the patriarchal social system has invisibilised us as equal beings.

Denying women their autonomy is a violation of their constitutional rights. Women are not subservient beings and the value of her consent cannot be dismissed by anyone, even if it is her husband. Because a woman is bound by matrimony does not mean that she loses her agency over her own body and it’s time the judiciary and citizenry understand it.

Views expressed are the author’s own

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