BIJAYA BISWAL | 24 DECEMBER, 2020
Is non-consensual sex a heinous crime or sacred duty?
CUTTACK: It was a case which could easily have been interpreted as rape, had the woman not been married.
When Subhashree is asked her age, she takes a moment to think before saying in an inconspicuous voice, “Must be fifteen or sixteen.” She isn’t sure when she had her last period, and fumbles before giving the resident doctor another approximate answer.
“It’s normal for patients who have survived trauma to struggle with recent memory,” the professor assures the young resident upon overhearing the conversation.
Subhashree arrived at the hospital with a complaint of abdominal pain and vaginal bleeding after sexual intercourse on her wedding night. She looks intimidated and intensely in pain. An examination reveals massive vaginal tears, suggesting… violent, traumatic sex? The insertion of objects?
The doctors say such patients are seen frequently in the wedding season. On other days, there are 25 year old women with their fourth miscarriage, having losing the foetus each time to the physical violence their husband inflicted each time they declined to have sex.
There are the older brides, married for a decade or more, their bodies bearing scars and vaginal tears of different ages, suggesting repeated sexual violence.
Occasionally, new mothers arrive with the stitches from their C-section reopened, oozing with blood and pus, sharing that their husbands tried to have sex immediately after delivery.
It takes four to six weeks after childbirth for the mother’s body to heal to a considerable extent. But a wife has obligations, and husbands can’t wait that long.
Strenuous household labour and the pressure of caring singlehanded for the newborn keep her occupied through the day. At night her exhausted body must quietly cater to her husband’s sexual expectation.
Non-consensual sex in a marriage can either be a heinous crime or a sacred duty, depending where you were born.
Pooja, all of nineteen, had to be referred to surgery instead of gynaecology because she needed reconstruction of her anal sphincter which was completely torn due to attempted anal intercourse.
When I visited Pooja to check on her after the surgery, she told me it was an act of love-making gone wrong.
Some of the men force themselves on their wives three or four times a day, occasionally in front of their children, not stopping even when she screams or cries or actively resists.
Some others were encouraged by their parents to consistently have sex irrespective of her wishes, to get her pregnant sooner.
There were women whose bodies and lives were turned into rehabilitation centres for their alcoholic partners.
There were women infected by HIV and other sexually transmitted diseases, which their husbands contracted elsewhere.
There were women who love women, and were expected to love men after years of “corrective rape” perpetrated by their husbands, and there were survivors of cervical cancer expected to “function normally” now that the disease was gone.
What these women had in common, as far as I could determine, was that ideas of consent or marital rape were missing from their imagination and vocabulary.
The historian Tanika Sarkar describes how the concept of consent was first recognised in Indian jurisprudence when a four-year-old married girl allegedly “chose” to immolate herself.
Child marriages were still deemed legal, until the gruesome death of a ten-year-old girl from injuries incurred during marital rape raised the legal minimum age of conjugal cohabitation to twelve.
This criminalisation of marital intercourse below the age of 12 saw largescale protests where people cried, Hinduism is in danger.
“A girl’s consent now came to mean her bodily capacity to bear intercourse without serious damage,” wrote Sarkar in her paper titled The Prehistory of Rights: The Age of Consent Debate in Colonial Bengal.
This culture and jurisprudence of consent has seen little change in the last one hundred twenty years.
Although sexual violence is typically underreported in surveys, the National Family Health Survey in 2015 found that 9% of ever-married women between the ages of 15-49 reported that they had faced sexual violence. 83% of those respondents said their current spouse was the perpetrator, and another 7% said it was their former spouse.
As marital rape is still not recognised in law, rape survivors generally file a divorce petition against their husbands citing IPC sections pertaining to criminal intimidation and insulting the modesty of a woman.
The Domestic Violence Act too, while recognising sexual abuse in a marriage, only offers civil remedy in terms of protection or monetary relief. Marital rape survivors looking for redress in criminal law file cases under the IPC sections dealing with causing ‘hurt’, ‘grievous hurt’ or the ‘cruelty’ clause in Section 498A – but the maximum punishment allowed is much lower than for rape.
Today at least 70 countries around the world have criminalised marital rape, taking years to refine legislations in order to cover cases like “mistaken belief of consent by the husband due to a history of rough sex”, “transmission of sexually transmitted diseases”, “rape performed under the influence of alcohol”, etc. India is not one of them.
For women like Subhashree or Pooja, sex becomes synonymous with rape because that’s the only way they have ever encountered it. It is an act which is never about the woman, never about pleasure, always about trauma reinforced over trauma.
They are discouraged from developing any sense of personal space, ownership over their bodies, or righteousness regarding bodily integrity since that would cause inconvenience to the innumerable patriarchal worlds we are in.
“Within a marriage, fighting back has consequences,” writes author Meena Kandasamy in her book When I Hit You.
“The man who rapes me is not a stranger who runs away. He is someone who wakes up next to me. I begin to learn that there are no screams that are loud enough to make my husband stop. There are no screams that cannot be silenced by the shock of a tight slap.”