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Are We Justifying Marital Rape Just To Protect The Institution Of Marriage?

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Since childhood, we have been taught to perceive marriage as a pious institution. We have been taught that marriage is a beautiful and romantic bonding between two people. It’s a bond of protection, love, and care. Sex has never been a part of this learning, yet all of us know that marriage has something to do with babies.

We grow up, eventually, get married and then discover that marriage is surprisingly not always as rosy as we imagined it to be. Marital rape is one of those unspoken, denied truths of marriage, which makes the victim suffer in silence.

There are women, a big percentage, who have reported how their husbands force them to have sex the way they (husband) want – and how ‘no’ is not the right word in such situations. But as we need to maintain the ‘holier-than-thou’ image of marriage, we are not supposed to talk about it.

‘Sex’-less-ness To A State Of Shock-sex-ness

While growing up, women are never encouraged to discuss sex. But the day we get married, we are expected to perform erotica for our husbands. If the woman is not comfortable, for reasons such as not being mentally ready to have sex with her husband, who listens to her? No one. Once married, it becomes her responsibility and duty to sexually satisfy her husband. The way the husband wants it. The number of times he wants it. Women are supposed to dedicate their bodies to keep their husbands happy.

It’s always more emotionally taxing, when the one we trust and depend on, abuses us. Home is assumed to be a safe space by all of us and hence, we must remember that a struggle inside our home is way more difficult than a struggle outside. When home turns out to be a place of abuse, one does not know where to go.

Marriage Is Beyond Consent

According to our society and the law, when it comes to marriage, consent is not important. Not even when women’s genitals are full of wounds. Not even when a husband inserts foreign objects into a woman’s vagina violently for his pleasure, and definitely not when a woman is forced to watch porn and perform ‘acts’ with her husband. She is supposed to keep calm, be tolerant, deal with pain, handle her trauma and move on.

The institution of marriage is not concerned about what the wife wants. It doesn’t matter if the woman is voluntarily participating in the act of sex or not. All that matters is that her body is available for the man to perform his desired sexual acts or perform his violent ideas of ‘sex’. Many times, it’s not even about sexual pleasure, but the pleasure of power, the pleasure of subjugating someone. In a way, in our society, marriage gives a man the license to have sex with his wife, without consent.

It Is Not Our Culture

It’s even more shocking how our society tries to normalize the sexual violence committed on wives. It is like an invisible sexual bondage, where one party decides the terms and conditions, and the other party agrees to perform. But if you decide to speak up against it, society will have issues with your culture.

According to our society, it is not culturally possible for an Indian woman to get ‘raped’ by her husband, even if she dies screaming ‘no’. I personally fail to understand this argument. How can rape be a part of any culture? It’s a deviance of social culture and the state has a responsibility to address it. Also, just because something is not a part of our culture, does that mean it’s not a reality? Theft, murder or burglary, none of them are a part of our culture, but do we deny their occurrence, justifying that they are not parts of our culture? No, we don’t. Rather, we try to legally address these issues.

Why do we connect culture with crime? Clearly, to dilute the crime, as the state has no interest in making the husbands angry.

Not ‘Norm’al But ‘Norm’alized

“Manu-Smriti”, (Sanskrit: “Laws of Manu” or “The Remembered Tradition Of Manu”) also called “Manava-dharma-shastra” (“The Dharma Text Of Manu”), is traditionally the most authoritative of the books of the Hindu code (Dharma-shastra) in India. Even though we are not ready to accept marital violence as part of ‘our culture’ (largely conflated with the Hindu culture), Manu has already done us a favour by codifying it centuries back.

According to Manu Smriti  5/157 – “Men may be lacking virtue, be sexual perverts, immoral and devoid of any good qualities, and yet women must constantly worship and serve their husbands.” The norm of sacrifice, duty and responsibility is only restricted to people with a vagina.

So what about people with a penis? What are they supposed to do? Manu has tips for them as well – in the code 9/6, he says – It is the duty of all husbands to exert total control over their wives. Even physically weak husbands must strive to control their wives.”

Beware, uncultured women, Manu has things for you as well 5/167 – “Any woman violating the duty and code of conduct towards her husband is disgraced and becomes a patient of leprosy. After death, she enters the womb of a jackal.” 

So we are quite sorted. Manu taught us, it’s the husbands’ duty to control their wives, and wives can’t escape duty towards their husbands (remember, even if they are sexual perverts, immoral and devoid of any good qualities).

We are indeed grateful to Manu, for these norms and normalizing marital rape for us. For impacting our social and justice systems so deeply, that even thousands of years later, our society and justice system still echoes his politics. Even after so many years, when leprosy is curable and the jackal is almost extinct, our state of law could not find a better logic than ‘culture’ as a counter-argument for decriminalizing marital rape.

Conflict With State Of law

The National Family Health Survey 2005-06 states that almost 1 out of 10 married women (aged 15-49 years) in India have been forced to have sex by their husbands against their will. Out of the women who reported sexual assault, 94% suffered it at the hands of their husbands.

The Justice Verma committee, which was formed to review the existing rape laws, also observed that “rape or sexual assault is not a crime of passion but an expression of power and subordination. No relation, including marriage, supplements an irrevocable consent to sexual activity.” Marital rape is also a violation of Article 14 (equal protection under the law), Article 15 (no discrimination on the basis of sex), and Article 21 (right to life with dignity) of the Indian Constitution.

In spite of having data and constitutional provisions, the position of the law regarding marital rape leaves us bewildered. In the recent judgement a bench of justices, MB Lokur and Deepak Gupta said, “Parliament has extensively debated the issue of marital rape and considered that it was not an offence of rape. Therefore, it cannot be considered as a criminal offence. There were mainly two arguments this verdict was based on:

  1. It might appear to be rape to the wife but not to the husband.
  2. It will endanger the institution of marriage.

The first point itself contradicts the existing rape law regarding burden of proof when it comes to sexual abuse or rape. After the Mathura rape case, The Criminal Law (Second Amendment) Act 1983 (No. 46) made a statutory provision in the face of Section 114 (A) of the Evidence Act made 25 December 1983, which states that if the victim says that she did not consent to the sexual intercourse, the Court shall presume that she did not consent as a rebuttable presumption. The amendment also shifted the burden of proof from the accuser to the accused once intercourse was established; it also added provisions for in-camera trials, the prohibition on the victim’s identity being disclosed, and tougher sentences.

It seems even after such amendments, the law continues to have serious trust issues when it comes to pro-women legislation. There is much hue and cry about how rape law or domestic violence act can be misused, how women can use such legal provisions against their husbands. So it is more important to protect the husbands (as their crimes can never be proved) because the wives are anyway socialised to be tolerant and never raise questions.

There is also an unofficial argument of western influence when it comes to criminalising marital rape. If we look at the list of countries (102 countries till date) which have criminalised marital rape, we see names like Nepal, Bhutan, Cambodia and this leaves us confused.

These are nothing but arguments to protect the privileges of one section of the society. The state and the society want us to close our eyes, bury our sanity and rationality, and continue victim blaming. Our society doesn’t like people with vaginas demanding their rights to have control of their OWN body.

There is a very famous saying in the field of criminology, “It is better that ten guilty persons escape than that one innocent suffer.” But, unfortunately, even in the 21st century, we tend to protect the criminals and justify their crimes, in the name of protecting marriage. Ask those women who are raped by their husbands, every day, what marriage means to them – and if it is as pious as the state thinks it is.

A version of this article was originally published here.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

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The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

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Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

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MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

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A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

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As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

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Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

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