#MarriageStrike: On India’s Marital Consent Debate

By C. Chandrawala and Bharati K

Illustration by @smishdesigns


*Content warning - rape and sexual assault *


It’s wedding season in India, and like many of us, my Instagram feed is full of wedding hashtags and photos, with people decked up and ready to join the band, baja and baarat. In the midst of all the joy and fanfare of the big Indian wedding season, India witnessed a rare public conversation on what it means to be married. And like a public marriage counsellor’s couch, the whole nation is watching as women are making their case, and men are….well, *facepalm*


In the past few months, the debate on marital rape has exploded in India. It all started when several Public Interest Litigations (PIL) were filed in the Delhi High Court challenging the exemption given to marital rape in Section 375 of the Indian Penal Code (IPC). These petitions are led by civil society organisations like the All-India Democratic Women’s Associations (AIDWA) along with three other individual petitioners, all of whom are victims of domestic abuse. The task before these petitioners is to convince the court and legislature to criminalise marital rape, which feels like something that should be easily done - perhaps the litigators could walk into court wearing sandwich boards saying #Obvi and that would be that. But alas, we don’t live in Obvi-land. And in Bharat, the circus must live on. So instead we have protests… against the criminalization of (marital) rape. Enter the stage: #MarriageStrike.


Protests and counter-protests:

In 2016, when the matter was first discussed in court, the Central Government argued that criminalisation of 'marital rape' would destabilise the "institution of marriage" (cue shock and surprise). However, this line of argument is nothing new. Several actors within the men's rights movement contend that inclusion of marital rape within the scope of Section 375 IPC will corrode the institution of marriage and family, and lead to a flood of false allegations and blackmail against men by their disgruntled wives. Essentially, their narrative paints women as the villainous creatures who are out there to accuse and jail men for exercising their “natural conjugal rights’. And thus launched their coup d’etat, #MarriageStrike.


In a Twitter storm, men’s rights activists took to social media to ‘strike’ against marriage. For them, the inclusion of marital rape was akin to destroying the institution for marriage and an attack on their so-called rights to ‘normal physical relations’ with their wife. While researching for this article, we went down the Twitter hellhole, reading through everything that was said, and honestly, peace be to all the brain cells lost in the endeavour. Here is a sample of the things said:


Responding to these toxic statements, activist Kavita Krishnan wrote:I strongly hope that men who are going on #MaritalStrike remain on strike forever. They are not safe for any woman to be married to. Anyone who thinks consent has no place in a marriage should never marry.

Our thoughts exactly. Reiterating what another Twitter user said, it's like the trash is taking itself out. These statements reveal a fundamental lack of understanding of the concept of women’s agency and consent and show the desperate need to control women’s bodies, desires and actions. If anything, these counter-protests are symptomatic of the rot existing within the rigid, patriarchal structures that continue to enforce control on women.


Why does this matter?

As most unwanted things do, the exemption on marital rape finds its origins in colonial law. Under the British Raj, the Indian Penal Code was drafted keeping Victorian moralities in mind, with the ‘doctrine of coverture’ forming the legal basis for excluding marital rape. The ‘doctrine of coverture’ concentrates the legal rights and protections of the woman into the hands of her husband upon marriage, denying married women any legal recourse in cases of sexual or domestic abuse. This regressive and insidious principle reinforces the patriarchal family set-up, where the man is the pati parmeshvar (god himself) for his wife, and therefore has complete rights to dictate her actions. Traditional marriage practices in India strongly mirror this sentiment with practices like the kanyadaan and dowry, all of which actively conspire to reduce women to mere property that is to be possessed and enjoyed by their husbands.


Marital rape is far more common than we think- according to the National Family Health Survey 5 (2019-20), 1 in 3 ever-married women in continue to experience spousal violence in India, however, only 1 in 10 report or seek any form of institutional support. These figures paint a grim picture of countless women trapped in violent, loveless marriages across the country, with no way out.


Following the Nirbhaya Rape case, there was a massive overhaul in the law on rape in India, with the Verma committee recommending the inclusion of marital rape within the legal definition. In India, violence against women is recognised under various laws and criminal offences like Section 498A, The Dowry Act, Section 375 of the IPC and Protection of Women Against Domestic Violence (2005). While these laws cover different aspects and facets of domestic abuse, none of them recognise, address, or criminalise marital rape explicitly. In this particular case, the debate is centred on the exemption given to marital rape within Section 375, which states that any sexual act performed by the man on his wife is not considered rape if she is not a minor (15 years of age), therefore any sexual act performed without active or enthusiastic consent of both married partners is not recognised as rape in the eyes of the law.


Speaking to the Telegraph UK, Karuna Nandy, one of the lawyers representing the petitioners said, “The marital rape exception that exempts husbands from the full force of rape law or when they rape their wives is a British colonial relic. We are before the court now seeking that it is struck down as unconstitutional in modern independent India.” (Telegraph, UK). Such outdated laws have no place in this century and must be recognised as an instrument of oppression. By challenging the exemption in court, these petitions represent a crucial juncture in the discourse on violence against women in India. Criminalising marital rape will not only give women a legal recourse to report their abuse but become a vital step in recognizing and legitimising the immense emotional and physical trauma faced by countless married women.


What does this mean for women’s rights?


Beyond the legal jargon and definitions, this debate has opened up the conversation on issues of consent, agency, and bodily autonomy of women, concerns that seem alien to the Indian legislature, and most explicitly, those of the criminal justice system.


A common thread linking all the statements made during #MarriageStrike is a frightful rhetoric of victim-blaming and shaming women for not behaving like ideal wives. Arguing that consent isn’t necessary for a marriage not only denies a woman’s agency but also her victimhood. By signing those marriage papers, you’re signing away your right to be a victim of sexual abuse, all because some men decided you aren’t. But despite not being allowed to be a victim, you can still be blamed for it, or for not adhering to what your husband wants. It fits into the broader rhetoric of victim-blaming which is prevalent in not just India but so many other countries that says, “this happened to you, but you’re a woman, so you must’ve done something to deserve it.”


The issue occupies a comfortable spot in the South Asian narrative on women’s rights, and our favourite good old boogeyman: fe-fi-fo-patriarchy. What is inherently flawed in the counter-protests is their idea of what a marriage should be. It rests on deeply patriarchal and misogynistic ideas of the roles men and women should embody within a marriage. It brings up crucial questions on the institution of marriage and exposes the inherent misogyny existing in the larger Indian society. We're left asking basic questions about consent within a marriage. What is an ideal wife? And more importantly, why does no one ask what is an adequate husband?


These questions are important, especially in a Gen-Z era, a generation that speaks in terms of gender and sexual fluidity, whose primary conversation is that of consent and sex-positivity (thankfully). The law will always fall short of being on the side of the oppressed, and something as serious as Section 375 IPC sparking this much debate has shown that. But even if it wasn’t the law, I wonder how much things would change. How does it become enforceable in people’s private homes? And then there’s whether women or not would come forward because the consequences to a woman speaking out isn’t necessarily legal.


A lot of these questions don’t have easy or definitive answers. But what we can conclude is this. We’re faced with the government, society, and a legal system that continues to perpetuate regressive cultural practices that disregard the form of agency of women. And instead of it being a clear stance, the issue of sexual abuse in marriage is still framed as a “for and against” debate where it’s okay to take an opposing side. And until it stops being such a debate, the ever so fragile institution of marriage that would crumble if it was illegal to rape your spouse will always be and a coercive exchange and a woman’s body is a currency in that.


So we too hope that anyone who tweeted in support of #MarriageStrike does, in fact, stay on strike.

 

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