A Tokenistic Consent

Graphic by Tejal Kawachi

Are you among those who open Twitter and see ‘marriage strike’ trending but do not understand what it is? Why are certain men putting posts of never getting married in their lives? What is the controversy behind this? Do not worry, this article is going to answer all your questions.

Whatever is happening entirely revolves around the issue of marital rape. Marital rape is when a married person forces their spouse into a sexual act without his or her consent. Marital rape has yet not been given a criminal angle to it and only comes under the acts of domestic abuse. Under Section 375 of the Indian Penal Code, rape is defined as an act in which a man has intercourse with a woman without her consent or by coercion or by deception or by the terms of fraud. Astonishingly this section has an exception wherein a married man when forcibly has sexual intercourse with his wife it will not be termed as rape. This particularly means that the consent of a woman to involve herself in a sexual act becomes irrevocable after she is married. With recent hearings on the issue in the Delhi High court, it is being discussed whether Marital Rape should be criminalised in the country or not. People are putting out their opinions on the removal of the exception under Article 375 of IPC on various social media platforms which has fuelled a controversy. 

All those who are in favour of the criminalisation of marital rape believe that women are not to be considered as the property of their husbands and marriage cannot grant a licence to men to have sex with their wives without their consent. This law has colonial roots but the British have outlawed this law in 1991. More than 100 countries globally have already criminalised marital rape however India is still stuck in a dilemma. People in support of criminalisation say that it is the right of women to say no whenever they want and being married does not give a right to the husband to forcibly have sex with his wife. According to the Petitioner, this exception violates the fundamental rights described under Article 14 and Article 21 of the Indian constitution. 

Those who are against the idea of criminalising marital rape believe that the criminalisation will go against the idea of marriage and will shake the foundation of the relationship between a husband and his wife. They also believe it will open more possible opportunities for some women to misuse this law for their benefit. Women can deliberately accuse their husbands in fake cases. Also, there is a problem with the burden of proof. If a woman has been forced to have sex with her husband, what will be the basis of proof? How can the accused prove that this did not happen in actuality? Because of these complications many men have been posting their pictures on social media with banners saying ‘I will never marry in my life’, thus the hashtag marriage strike is trending. It says that men will not marry because criminalisation will give their wives a chance to face baseless criminal charges. They believe that the criminalisation of marital rape will give enormous power to women which could be misused easily. 

However, several women rights activists have argued that the effects of criminalisation are not going to threaten the institution of marriage. The idea of marriage is not based on giving autonomy to men to have sex with their significant others whenever they want to, it is much more than just sex. Kavita Krishnan, a prominent female rights activist, says in a tweet that men who are going on marital strike should remain on strike forever as they are not safe for any women to be married to. The tweet rightly puts forward the point that marriage is not just about sex and when sex is involved the consent of both partners is important regardless of the fact they are married. When the British revoked the law back in 1991, why are we still stuck with it? The decision made by the colonial government was irrational and was rightly pointed out because of which the British government took into consideration the rights of their women and took it back. The act of marital rape is deeply condemned and I believe there is no role of gender involvement in this issue. Adding the gender perspective in this problem only acts as a catalyst to fuel an unnecessary controversy that is already happening. Thus, it becomes necessary to see only marital rape as an issue and not to focus on any added angles. 

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