Can a woman say no to her husband if she does not want sexual intercourse with him? We understand that this question triggers a very personal issue. Many women and girls have empowered themselves to make any autonomous decision about their body but still there are millions of females, including married women, who do not have any choice to take any decision on their bodily autonomy. Bodily autonomy means that any woman must have the power and agency to make any choices, without fear of violence or having someone else decide for them including decisions about healthcare, contraception and sex or selection of partners.
There are many countries which allow a husband to do sex with his wife without her consent. But what we understand sex without consent is rape. So any such type of act within the institution of marriage sphere is called as marital rape.
This year, the State Population Report-2021 under the flagship of United Nation Population Fund (UNPF) has been released. This year’s theme is “My Body is My Own.” In a nutshell, this report focuses upon the women’s rights on their bodily autonomy and self-determination. Depriving a single woman of bodily autonomy is unethical and it leads to inequalities, violence and gender discrimination.
This report further says during this pandemic, there is a sharp increase in rape, marital rape and raping women suffering from disabilities Recently, the Chhattisgarh High Court in a decision on marital rape remarked that any sex or sexual act by husband to his wife is not a rape even if it is done by force or without wife’s consent.
In her allegation against her husband, a woman stated to the court that her husband had forced sex as well as unnatural physical relations with her. Despite witness, the court discharged the man from facing trial for allegedly raping his wife. There are 36 countries which don’t have any legislation to criminalise marital rape. India is one of them. Yes, we have learnt that marriage is a legal union between man and woman.
The primary motivation of marriage is sex gratification and children. The institution of marriage is also under patriarchal dominance as like other social institutions in India. That is why, the Karnataka High Court says denial of sex by wife to her husband is violation of Hindu Marriage Act.
It reflects the haughty male dominance Indian culture. Some sociologists argue that as marriage is a sacrament in India as well as it has other major societal influence so the legal system should less interfere in its matter. As per Section 375 of IPC, sexual intercourse with one’s wife over the age of 15 will not be regarded as rape.
However, the Criminal Amendment Act of 2013 has increased the age from 15 to 18 years. The United Nation Convention on the elimination of all forms of discrimination against women has proposed marital rape as a criminal offence. Further, it says that marital rape is a threat to gender equality and human dignity.
The Supreme Court of India, by citing two cases such as Puttaswamy Vs Union of India and the State of Maharashtra Vs Madhukar Narayan as references, says that sexual privacy is a fundamental right and forced sexual act is a violation of the fundamental right.
There is a correlation between marital rape and other social practices. For example in Uganda, marital rapes were committed against 15 to 19 years old girls by their older husbands. These older grooms pay a huge bride price to get these younger girls. Here marital rapeis connected with child marriage. Marital rape is a clear cut instance of gender inequality.
It has a presence in our society as a hidden norm. As per UN Population Fund report, two third of married women in India i.e 15 to 49 years have been beaten, raped or forced to provide sex. See, Indian legal system is concerned about this issue.
The Supreme Court of India referred to JS Verma Committee’s recommendation to make marital rape a crime. But the Indian judiciary has been polarised on the marital rape issue. As per National Family Health Survey, 92% out of 80,000 women interviewed had claimed that they had been abused and subjected to sexual violence by their current or former husbands. In Kerala a husband forced his sick wife to have sex with him. The sick wife was abused and faced cruelty. Wife moved to Kerala High court for justice and divorce. Despite knowing that marital rape does not come under criminal offence, court says that it is an act of cruelty and has sufficient ground to grant divorce.
Further it is also reported that women with a disability were more likely to have undesired sex with or marital rape by, an intimate partner. Marital rape has been a less discussed issue in India. Still India has not criminalised this as an offence. But it does not mean that the impact on the marital rape victims is less than any other rape survivors.
A victim of marital rape also suffers from psychological trauma, physical injuries, sexual transmitted diseases, unwanted pregnancies and miscarriages. As per a report by WHO, women experiencing abuse or rape in marriages are 1.5 to 3 times more likely to be HIV infected and 2 to 4 times more likely to be STD-infected. We are clamouring about women’s rights and equality. Still, India is not in the list of 151 countries that show the resolution to criminalise marital rape.
In our country as long as marriages are considered as a legal panacea for rape by allowing perpetrators to marry their victims to avoid any penalties for their crime, marital rape will remain present. India should show courage like Tunisia where marital rape is considered as an offence and give justice to women sexual rights.
(Dr Parida is an Assistant Professor. Email id abash.parida@gmail.com)