TW: This article deals with sensitive issues like marital rape, violence and consent. Reader discretion is advised.
Recently, the #MarriageStrike that started trending on social media created an uproar in India. The hashtag has received an engagement of more than sixty-eight thousand tweets.
The Marriage Strike hashtag was started by Save India Family Foundation (SIFF). It is a men’s rights advocacy group in India. Starting the hashtag was an attempt to protest the ongoing Delhi High Court’s hearing on criminalising marital rape in India.
Men’s rights activists fear that if marital rape gets criminalised, it would give Indian women a scope to misuse the law by falsely accusing their husbands. A short rundown of the background will give us a clear picture of whether such fears are real or unfounded.
How did Marriage Strike start?
On January 11, a two-judge bench of Justice Rajiv Shakder and C Hari Shankar at Delhi High Court decided to hear petitions challenging Section 375 of IPC.
Section 375 of the Indian Penal Code lays down the definition for the offence of rape and what consent should look like. Violation of notions set by section 375 will be counted as rape. The section has been changed over time to emphasise the importance of consent and to eliminate outdated and archaic concepts around what constitutes rape.
However, there is one exception in the definition of rape and consent in the Indian Penal Code. This exception of IPC section 375 states, “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.” This legally allows men to consensually or non-consensually engage in sexual intercourse with their wives.
Essentially, it says that the husband has a self-acquired right over his wife’s body after marriage with no regard to the consent or bodily autonomy of their spouse. To put it in plain words, marriage is a ritual of acquiring a licence for a man to take over the ownership of a woman’s body for his sexual pursuits.
In this context words like rape or sexual abuse are words meant to be used for unmarried women. Thus, this section assumes that the concept of ‘consent’ of a wife is non-existent in a marriage.
The discriminatory section 375.
Section 375 discriminates between two groups of women- married and unmarried women; while there are laws to protect an unmarried woman, Section 375 fails to protect married women from marital rape by legally establishing ‘marriage means implied consent.’
Petitioners and activists are trying to overturn this dreadful and unconstitutional exception as it violates the fundamental rights of a married woman by disregarding their consent.
On the other hand, the men’s rights activists have threatened that they will denounce marriage if such a proposal is legalised.
But how are these men affected if the proposed law is meant to protect women? The answer lies in the archaic Section 375 which like most other penal laws passed down from the British has largely stayed unchanged even after 73 years of independence, while laws in the UK had criminalised marital rape in 1994 itself.
Dilip Pandey and ors v. the State of Chhattisgarh.
A case in point is the shocking judgement given by Justice NK Chandravanshi in the case- Dilip Pandey and ors v. the State of Chhattisgarh. In August 2021, the Chattisgarh High Court released a man from facing prosecution for allegedly raping his wife. The judge alluded to the exception in Section 375 and noted that “in this case, the complainant is the legally wedded wife, therefore, sexual intercourse or any sexual act with her by the husband would not constitute an offence of rape, even if it was by force or against her wish.”
This case is significant because it demonstrates how Section 375, like many other defective laws, continues to govern how much control we as women have over our bodies. Consent is accorded the least importance in Indian society. In fact, it is not just a case of ignoring the wife’s consent but also establishing that the wife has no agency in the institution of marriage.
This Indian Penal Code had come into force in 1862. That means 160 years of its existence has embedded itself with deep roots in the psyche of men over generations in Indian society.
Why is #MarriageStrike trending?
On January 19, the Union government notified the court to speed up the process of looking into the issue of criminalising marital rape. A day later, the hashtag Marriage Strike started trending on Twitter.
The hashtag was started by men who believed that if marital rape was criminalised then it would favour women by giving them a scope to file false cases. The use of #MarriageStrike by these men was a shoutout against the government’s proposed decision of criminalising marital rape.
Going by the number of tweets generated using the hashtag Marriage Strike, it is not surprising to note that most of the tweets by men reflect a kind of fear and deep insecurity. The assumption that there is a scope that all women would always go for filing false cases is rooted in misogyny and deep-down fear of men losing their power as a patriarch in a household.
According to the National Family and Health Survey (NFHS-5) of 2019-20, over 30 per cent of women in five out of 22 States and Union Territories have experienced spousal violence. The statistics of spousal violence is horrifying. It is a shame that men look at themselves as only the spouse who may ‘supposedly’ suffer if marital rape is criminalised.
These men’s rights activists fail to look at the matter through the eyes of a father, a brother, a friend, and an ally. The question here is will these men side with their sons-in-law/brothers-in-law/brothers/male friends when they come to know of the traumatic and unfair experiences of their female relatives.
Women, Consent and Marriage Strike in India.
India is one of 36 countries in the world that is yet to criminalise marital rape. The criminal justice system in India and likewise, society in general, views consent from a patriarchal lens. Consent is always seen in black and white, as a mere ‘yes’ or ‘no’ without acknowledging the power dynamics that may exist.
And unfortunately, most times, a woman’s consent is considered non-existent. Section 375 needs to be struck down. It views a married woman as their husband’s property and strips them of their agency and basic rights by limiting their bodily autonomy.
It is important to note that on February 2, the Union Minister of Women and Children’s Development Smriti Irani spoke in the Rajya Sabha saying, ‘every man is not a rapist’ while at the same time saying ‘protection of women and children should be a priority for all’. What is intriguing is that a minister who is supposed to uphold women’s rights makes a contradictory statement trivialising the crux of the problem by making it an issue of men vs women.
At the end of the day, it boils down to one thing- all the noise of this hullabaloo is confined to the urban space only.
Not to sound sceptical but one must understand that even if the government passes the law, as long as patriarchy continues, such a strong set of power dynamics will continue to exist and women will continue to suffer in the prisons created by their spouses.
Feature Photo by Tim Mossholder on Unsplash