Marital rape is legal in India... unless the woman is pregnant
Married Indian men are entitled to their wives' vaginas. Almost everything in our law supports this seemingly flippant statement. The only exception to it is if the wife is "in the family way" or, to put it simply, pregnant.
Last month, the Delhi High Court had ruled that denial of sex on the wife's part was legitimate grounds for the husband to be granted divorce. The court had observed that it was 'mental cruelty' on the wife's part to deny her husband sex.
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"In view [of] the foregoing discussion, we are of the considered view that the husband has fully established that he was subjected to mental cruelty by the wife by denying sex to him for a long period despite living under the same roof, without any justification and though she was not suffering from any physical disability," the bench, comprising Justices Pradeep Nandrajog and Pratibha Rani, said.
Now, the same bench has made a small edit - pregnant wives are exempt.
Latest judgement
The Delhi HC has observed that "a wife who's carrying a foetus in her womb would obviously be inconvenienced by sex, and it would not constitute cruelty even if one assumes that she totally shunned sex with the petitioner as her pregnancy advanced."
The petitioner, while calling his wife cruel, had claimed that she had been avoiding his sexual advances since August 2012. He also claimed that she wanted him to live separately as she was having an affair. He further charged that she was verbally abusive towards her in-laws.
However, the court observed that the husband that failed to provide any evidence for these claims. It also made note of the fact that the couple had had a child within the first year of their marriage.
The petitioner also complained about his wife asking for tea. To this, the bench said, "The assertion that a wife gets up late and wants tea served to her would, at best, show that she is lazy, and laziness is not cruelty."
Womb politics
So, let's get this straight. A woman, if married, exists in that marriage for the sole purpose of providing her husband with sex. If not, she's the worst kind of human. Whether this is sex she needs or even wants is not questioned. Furthermore, if she alleges that the 'sex' was forced upon her, it is brushed off. After all, the act of marital rape is still legally not punishable
But god forbid she be pregnant. Because suddenly, her status is elevated from being an unpaid, live-in sex-worker, to the vessel that will carry her husband's name forward.
With her child's existence, whether borne out of consent or not, the woman gains agency to deny sex. Or rape, as unwanted sex ought to be called. The child must be protected with everything the family has. And this includes the father's contribution in abstaining from sex. Abstaining from sex AND serving his pregnant wife tea in bed. What a martyr.
How is it that the country's top courts fail to rule in favour of the woman simply on the basis of sexual consent? Why must women always need to explain why they cannot provide sex in marriage? And why is the providing of sex the woman's prerogative, why is she the object of sexual satisfaction and the husband the subject?
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The irony is that the only thing that can apparently stop this cycle of abuse is a pregnancy, the result of unprotected sex. Be it consensual or not.
Woman who?
We live in a society where a man can, without any shame whatsoever, approach a court and appeal with his fragile ego. A man can claim that he had to suffer mental cruelty because his wife has a mind and will of her own.
Our law recognises this man, sympathises, pets him lovingly and sends him home with freshly drafted divorce papers.
A man can also, unbelievably, make the claim that his pregnant wife should be held accountable for asking for tea. The court then, while rejecting the man's 'right to sex', declares the woman 'lazy' but inoffensive.
The man is never shamed or called out for the demands he makes. Demands like sex, that require the woman to submit herself to him, are considered his right. After all, he married her, didn't he?
But if a woman, his pregnant wife at that, asks for a cup of tea, she must indeed be 'lazy'.
Regressive is cool
The man's claim to mental cruelty for not getting sex needs to be juxtaposed with the woman being constantly badgered with demands for sex. However, constant demands for sex aren't seen as an infliction of mental cruelty in the universe we inhabit.
It is laughable that a woman who remains silent and goes through with it essentially suffers rape, while one that doesn't is seen as deserving of divorce.
The law, of course, only recognises the second sort of married woman.
For a country obsessed with its rape statistics, in newspapers, in debates, in everyday consciousness, India is blind to the rape that happens within marriages.
Not only is the act of marital rape still legally not punishable, but the possibility of such a law is often used as a case for men's rights activism. Because if wives could file charges of rape, how would men ever avoid being framed?
The constant protection of men's interests, such as the fear of getting framed, the right to sex in marriage, and the right to question a sexless marriage, is indicative of a regressive society that sees women as second class citizens.
First published: 7 November 2016, 9:31 IST
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