Women must have the right to not consent to any abuse, not just sexual, within marriage

The Delhi High Court is at present hearing several petitions filed way back in 2018 seeking to criminalise sex without consent in marriage as ‘marital rape’. Section 375 of the Indian Penal Code deals with rape. The colonial-era provision has an Exception 2 that says sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape. There is a longstanding demand to criminalise all marital rape but the Union Government says that doing away with Exception 2 could destroy the institution of marriage. The Delhi High Court made some introductory remarks during Monday’s hearing on the petitions. They are thought-provoking. One, the protection husbands get under Exception 2 may have to do with a “qualitative difference” between marital and non-marital relationships. Here goes the explanation: In a marriage, unlike in a live-in relationship, a spouse has an ‘expectation’ and ‘to an extent a legal right’ to sexual relations with the partner. If it (sex) is denied, it can lead to civil consequences and can also lead to divorce. Two, where a couple is unmarried and the man insists on having sex, it becomes a matter of force because he is not exercising any right legally due to him. However, in marriage, the man exercises what he believes to be the conjugal right. Three, even though there is no compromise with a woman’s right to sexual and bodily integrity, and the husband has no business to compel, (but) “the court can’t ignore what happens when we knock it (Exception 2) off”.

The entire controversy springs from the assumption that marriage gives conjugal rights to the husband. Sex is not the determining factor of a relationship between a man and a woman, whether through marriage or an informal relationship. A woman’s right to dignity and bodily autonomy and the right of choice are far superior, and tangible, to any supposed right the husband may assume that his relationship with the woman gives him. Just as the relationship dries up if the partners are drained of mutual trust and affection, sex between them depends on the consent of both partners and definitely of the woman. The age of the wife does not matter at all because the woman’s dignity and choice, not her age, are important. What follows is, any social sanction that belittles and ignores the woman’s right of choice and consent in matters of sex, harms, not just the woman’s rights but all relationships — formal or otherwise. We must remind ourselves — to help us look at the big picture — that women are often dehumanised in marriage for dowry, for failure to give birth to a son, for not respecting her in-laws and many more such “sins”. Should they also be the victims in the most intimate of relationships with their ‘legal’ partners? Women should necessarily have the right to not consent to any abuse, not just sexual, within marriage.