"NO" Means "NO"!

Marriage | 24th February 2022 | Virtual Wire


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Since 18th January, a new #marriagestrike started trending over Twitter, by Pan India men’s Rights Group.

This was the outcome of a hearing in Delhi High Court to criminalize marital rape. On one hand, there are people who consider rape a violation regardless of whether it's marital or not, while some say that men will be in danger due to fake cases. That is why men are calling for a marriage strike. What is the mindset behind this trend? Do they understand the importance of consent? Do they care for women’s rights?

The definition of rape codified in Section 375 of IPC includes all forms of sexual assault involving non-consensual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s definition of “rape” and thus immunizes such acts from prosecution. Marital rape is not a crime in India till now as many laws are inherited from the colonial period which considers women as ‘chattel’- a personal possession. But India has decolonised itself so it should erase the colonial law as well. Moreover, the marital rape exception was overturned by the House of Lords in 1991, Canada (!983), South Africa (1993), Australia (1981) enacted laws that criminalise marital rape. India is one of the 32 countries where there is no marital rape law.

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The arguments put forward by the government and men’s right are groups are as follow. First, criminalising marital rape may destabilise the institution of marriage and create anarchy in families. They expect women to be the homemaker, tolerant, and the ones responsible to save the marriage. So, will women sacrifice their dignity and respect just to save a family? The argument is sexist and stereotypical. Second, marital rape is already covered by article 498 of the IPC. But it deals with the cruelty of the husband. So, it is illogical. If a woman has been raped, why should she complain of a lesser offence to get justice? If a woman is raped then she will have to report domestic violence under this law which is unfair and against the fundamental right of ‘equality before the law’.

Third, Men’s rights groups fear that fake cases will rise, as happened in the 498A case or dowry. There are provisions for fake cases. We cannot cite misuse to prevent making the laws. Fourth, how will the husband prove the consent, will the wife sign a stamp paper stating her consent? The idea that the man has to prove he had consent is not accurate. The law of criminal jurisprudence still applies. The onus is still on the woman to prove, beyond reasonable doubt that she was raped. The consent may be difficult to prove, but they are difficult to prove in rape cases, live-in relationships. Moreover, since it is difficult to prove does not mean we will not have a law for it.

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Fifth, marriage means implied consent for sexual relations for life. It harks back to the idea that marriage makes a woman her husband’s sexual property and gives him sex whenever he wants a wife’s duty. So, does it imply that once married women sell herself to a man, who can rape her whenever he wants? The most important argument put forward is that India is an immature society and criminalising marital rape would lead to chaos. However, if we wait for society to reach a level where everyone is mindful of consent will take a century as marital rape to some men is an alien concept.

Over 80% of married women who are victims of sexual violence report their current husbands as to the perpetrators and 9% report a former husband India is among 32 countries that have not criminalised rape including Afghanistan and North Korea. We should not fall behind in terms of providing women with their due shares of rights. All over the world feminists’ movements are emphasising, the importance of sexual consent and empowering women to report sexual violence and yet India continues to hold a man’s right to rape his wife. The fight to criminalise marital rape in India then is not just about changing the law on paper.

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It is about attacking the age-old mindset that still views a woman as her husband’s property and not as an individual. It is about fighting against this notion of marital sanctity that is based on the subjugation of women and challenging larger rape culture that denies women basic rights, respect and bodily autonomy. Thus, in my opinion, #marriagestrike is justified as men who do not know the meaning of consent and treat wives as property should not marry. We need a constitutional society and not the one run by patriarchy.

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