'Marital Rape Clause': The concept of consent | The Issue

Early in 2022 a curious hashtag trended on Twitter. Now that in itself isn’t cause for much concern considering this is usual for Twitter but the hashtag read #MarriageStrikes.

The reason for this trend? Men’s Rights activists were concerned about the Delhi High Court hearing a petition to strike down the ‘marital rape clause’ This of course was because of the assumption that women may use this to their benefit and slap men with fake cases.

One has to be out of touch with ground reality to think that it is easy and convenient for a woman in our country to live peacefully after accusing her own husband of rape, but understanding the nitty-gritties of the power equation within a marriage is a conversation for another day. Today we want to take a look at one of the foremost tenets of any conversation on sexual activity – consent.

Also watch - Consent amongst most underrated concepts in our society: Rahul Gandhi

Since marriage as a social contract is still largely seen only for the purpose of reproduction, consent is considered to be implicitly implied in such situations. Simply put, it’s assumed that the minute you get married you have consented to sex for time immemorial. But this goes against what we now know to be enthusiastic consent.

We can attempt to understand enthusiastic consent using this list from planned parenthood.

F – Freely Given
R - Reversible
I – Informed
E – Enthusiastic
S – Specific

According to a BBC report, in a 2018 survey of more than 1,60,000 households, 93% of married Indians said that theirs was an arranged marriage and they didn’t really know their partners.

The lack of education in many parts of India and more specifically of comprehensive sexuality education or CSE also points to the fact that many times women don’t even know what good and healthy sexual practices are. Divorce is still a taboo, and when women are often not even consulted before they’re married – assuming free consent in perpetuity is willful ignorance. And this is what the numbers say too.

According to data from the National Family Health Survey-5 conducted in 2019-2021 one in every 25 women in India was reportedly subjected to sexual violence by her husband. 4% of Indian women. Government data has also showed time and time again that India has a severe problem of under reporting sexual violence.

Also watch - Marital rape debate: Why rape charge order against a husband by Karnataka HC is significant

The societal taboo against victims of rape is high already, in such a situation for women to come out against their own husbands becomes tougher. So as things stand today, what is the legal recourse women have against this violation of their bodily autonomy? Not great unfortunately.

Though Domestic Violence Act includes sexual abuse as one of the definitions of Domestic violence, it is a civil law – which means the punishment for a crime of the same nature is not as stringent as that against rape.

This can perhaps be explained by taking a look at the etymology of the word rape – it comes from the word ‘rapen’ which means to seize that which does not belong to you. But when women are seen as property of their husbands, then the premise of marital rape falls flat. A husband is not seizing anything, the woman belongs to him already.

The Justice JS Verma committee report put this into words in a way that makes most sense - “the relationship between the accused and the complainant is not relevant to the enquiry into whether the complainant consented to the sexual activity and the fact that the accused and the victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.”

It shouldn’t matter the relationship between two people, just as a no is a no, a crime is a crime.

Part 1 - 'Marital Rape Clause': The History
Part 2 - 'Marital Rape Clause': India's global standing