The Exceptionally Curious Case Of Marital Rape Where Trauma Is Considered ‘Sacred’

Trigger Warning: This deals with rape, marital rape, and violence against women, and may be triggering for survivors.

The Criminal Law Amendment Act, 1983 has made a statutory provision in the face of Section.114 (A) of the Evidence Act, which states that if the victim girl says that she did not consent to the sexual intercourse, the Court shall presume that she did not consent.

Passive giving in is not consent. However, it is unclear why the above rule is not applied to cases in marriage where clear consent is not given by the wife, every time.

When rape becomes ‘sacred’

But just the fact that such humiliation is faced by so many, and the trauma a married woman has to go through at the hands of her husband is unfathomable. The husband who she might be financially dependent upon, the husband who could be the father of her children, the husband with whom sex, according to Delhi High Court judge Hari Shankar, is sacred.

When I say husband, it’s a pity that I have to reiterate that henceforth, I’d only mean abusive husbands by the term, lest anyone takes any offence. And to be spared all the angry glares, let me make it clear – #notallhusbands

Now that I have made it clear, let me move on. Yes, while the fact that there is no law on marital rape is an ongoing discussion, I would like to bring to light the fact that Article 21 of the constitution provides for right to life, and dignity, privacy, safety and health are essential to any human’s life.

There are other aspects associated, which I’d like to talk about, where the respected judge, Justice Hari Shankar, a man of great learning and experience, failed to preserve the honour of women in his verdict yesterday.

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That we are upset and feel disheartened would be an understatement. There is anger, there is a sense of betrayal, there is also some distrust to some extent. But it’s a democracy and this is probably how I can express my views in the most democratic way.

Here we go, statement by statement from the verdict.

Is marriage only about sex and the man’s whims?

The expectation of sexual relations is impossible to prevent in a marriage, and differentiates marriage from other relationships.

No sir, there is a difference between expectation and reality. Such expectation is less of an expectation, more of a demand – and a woman is not subservient to her husband’s whims and fancies. This only implies that there can be no end to a man’s sense of control (aka desires aka expectations).

Not just that, a woman does not enter into such a union to fulfil his sexual expectations. She enters into a union on the promise of love, and its basis should be consent. The only expectation a man should have from his wife, and the woman from her husband is of mutual trust, support, and respect.

A man can never understand a woman’s trauma

To compare forced sex with husband to forced sex with strangers is “unrealistic”, the impact of the two acts on women is different, and women can’t feel the same outrage over both.

Again a very, very irresponsible statement to make considering that shock, trauma and pain is personal and unique to every person.

To be a man and make an irresponsible general observation for all women is not only trying to fit women and their experiences into one box, but is also being insensitive and putting the husband on a pedestal – that his crime is less heinous just because he is the husband.

This is yet another example of men speaking blatantly about women’s bodies and rights and experiences, and even making decisions and giving verdicts.

Huh, really?!

Women have no fundamental rights to convict husbands of rape.

Which, sir, is precisely why this case is before you.

This is assault, no matter how it is framed

The possibility of regarding husbands as rapists would be “antithetical” to the institution of marriage.

Depriving women of this right is to force them into an unequal marriage where they cannot ask for their own well being and protection. And the institution of marriage is only sacred when both partners give consent to build a healthy and equal relationship.

What is antithetical to this institution is the exploitation and assault of one partner, because a crime is a crime no matter who commits it.

Sir, there’s a reason divorce is a possibility despite society

Preserving marital institutions is imperative to preserve society.

Preserve society on these faulty principles? Protection of a faulty institution should not be the social goal. Protection of individuals must be, because individuals make up the society.

A broken marriage held together with a weak adhesive will never be a strong unit of the society. Marriages must create safe spaces for two individuals where they can nourish each other and help each other grow.

Yes, finally we agree!

If marital rape is criminalized, a child born out of the act would be the child of a rapist.

In short, yes. That child would be conceived in a place of trauma and not born out of love. That child would be a forced, instead of a wilful, responsibility. And children must only be products of love, not coercion.

Rules in a marriage have been made by men since forever, and we want to change that now

“Unjustified” denial of sex is not condoned by law, and sex between man and wife is “sacred”.

No, sir, not at the cost of a woman’s dignity, her peace, her mental, physical and emotional health, or her overall wellbeing, her security and safety, and her future. The thought of living with your tormentor is unfathomable.

And who justifies what is justified or unjustified denial of sex? Is her place in a marriage only to provide the husband with unconditional sex? How is any sex without consent (aka rape) sacred? Is it really that hard to grasp that non consensual sex goes against the nature of anything pious and sacred, and basic to a joyous, equal, healthy, and happy marriage? Where does a married woman’s bodily integrity and autonomy lie, Sir? Have we reduced her identity in a marriage just to her vagina? I ask, and so do many women.

Men who don’t care for or trust wives are a threat to marriage, not wives who say no to forced sex

A marital rape law would be only as one sided as any other rape law. It is in no way a threat to a healthy marriage. What is a threat to marriage are husbands not willing to trust their wives, when the very women have been trusting the husbands (many of who happened to be complete strangers) for years.

Women in India have entered into the institution of marriage not with any guarantee but just some faith, and any man who has a healthy and safe relationship with his wife would understand the gravity of the situation and welcome such a law. This will also encourage and help develop some balance and understanding between two adult individuals before they decide to get married.

In regards to the threat, or the perceived imaginary future threat that many men have regarding this law, your verdict in the absence of such a law is endangering the lives of many women across the country in the present, just as it has for many years in the past.

Now, that’s some exceptional privilege.

Image source: a still from the film Agnisakshi

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