But most telling, is the position of sexual consent within India’s legal vision of marriage. Not only does the Indian law reject the notion of ‘marital rape,’ but courts have been known to explicitly rule that even when sex is forced by a husband on his wife against her consent, it cannot be regarded as rape!
And rightly so. As we have stated elsewhere, marriage is a consent to having sex with your spouse.
This effectively silences and provides no exit door to women who have to endure extreme sexual violence and torture within their marriages.
The exit door is there, only Rita Banerji doesn’t see it. It is called separation or divorce.
Moreover, Rita Banerji is being disingenuous. To put the record straight, violence towards anyone (whether he/she be one’s spouse or not) is a crime under Indian law. There is no need for a “marital rape” law. If someone is assaulting you, go file a complaint against him or her. Whether he/she is assaulting you for sex or for your money, it is still assault. When there are existing laws, don’t ask for new laws.
But perhaps the most grotesque of all, is the law of the Restitution of Conjugal Rights, whereby a court can grant a man sexual access to his separated wife, a law that has been described as “barbarous and vulgar [in which] the government should be abettors in a form of legalized rape.
Wrong. No court can force anyone to have sex or to even live with someone else. The RCR law, formally section 9 of the Hindu Marriage Act, states that
When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
Rita Banerji probably does not know that in the vast majority of cases, the RCR is applied for by the woman so that she can again live with her husband in his home, in order to usurp his property. And in many other cases, the RCR is applied for by the husband to show the court that the husband is ready to cohabit with the wife but that she has deserted him so he should be given divorce. This section is expressly used these days to prove “desertion”, finally leading to a divorce. A spouse is free to ignore the court’s decree. If a spouse doesn’t resume cohabitation even after the court decrees restitution, then divorce can be granted to the other spouse on that ground.
This article states:
A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party. Restitution of conjugal rights is the only remedy which could be used by the deserted spouse against the other. A husband or wife can file a petition for restoration of their rights to cohabit with the other spouse. But the execution of the decree of restitution of conjugal rights is very difficult. The court though is competent to pass a decree of restitution of conjugal rights, but it is powerless to have its specific performance by any law.The non-compliance of the issued decree results to constructive destruction on the part of the erring spouse. At present as per the provisions available under the Indian personal laws, the aggrieved party move a petition for a decree of divorce after one year from the date of the passing of the decree and the competent court can pass a decree of divorce in favour of the aggrieved party. The decree of restitution of conjugal rights can be enforced by the attachment of property, and if the party complained against still does not comply, the Court may also punish him or her for contempt of court. But under no circumstances the court can force the erring spouse to consummate marriage. Decree of restitution of conjugal rights could be passed in case of valid marriages only.
And of course, if one of the spouses is abusive, no court will grant this decree. One of the reasons to decline an RCR petition is:
… an act, omission or conduct which makes it impossible for the petitioner to live with the respondent.
Rita Banerji continues:
Within this same framework of thinking, Indian courts often drop rape charges against men if they agree to marry their victims.
And needless to say, the “victim” expressly agrees to marry her “rapist” in such cases. Does the court or the rapist force her? Why does she? She should say no and let the prosecution continue.
What this means, is that where “sexual consent” is the central principle in recognizing and defining rape universally, and is key in upholding an individual’s human rights and autonomy, in India it is a completely disregarded concept.
Wrong. If you do not wish to have sex with your spouse, do not marry him/her and/or exit the marriage. Leave his company. Go to some other place.
If you stay with your husband, get all the benefits of the cohabitation, but refuse to have sex with him, then you are worse than a prostitute. You are a thief.