Marital Rape Verdict: Justice Hari Shankar, Marriage Is Not Lifetime Consent

We can say "wife refuses and the husband, nonetheless, has sex", or just recognise it for what it is – marital rape.

We can go on and say "wife refuses and the husband, nonetheless, has sex", or just recognise it for what it is – marital rape.

(Photo: Aasawari Kulkarni/Feminism In India)

(Trigger Warning: Descriptions of rape. Reader discretion advised.)

"If the wife refuses and the husband, nonetheless, has sex with her, howsoever one may disapprove, it can't be equated with the act of ravishing by a stranger."

These are the words of 54-year-old Justice Hari Shankar, who ruled against striking down of the marital rape exception, in the split verdict by the Delhi High Court delivered on 11 May, Wednesday.

I read Justice Shankar's absurd words again, and again – with rage and with sadness.

But to put it bluntly, these words form the basis of triggering perceptions – one that reduces married women to mere objects. It also reduces the institution of marriage – which it claims to protect – to something that is outrightly disrespectful to women.

We can go on and say "wife refuses and the husband, nonetheless has sex", or just recognise it for what it is – marital rape.

A Woman's Body is Her Own

"A husband may, on occasion, compel his wife to have sex with him, though she may not be inclined. Can it be said, with even a modicum of propriety, that her experience is the same as that of a woman who is ravaged by a stranger," Justice Hari Shankar asked, in his part of the judgment.

To answer: Absolutely yes, it does. As a woman who is married, I want to reiterate that my body is my own. It is my personal space that no one gets a free pass to violate – even if the person is a man I love and I married.

I was recently looking for analogies to explain the concept of consent to my eight-year-old niece. Perhaps, it will be of some use to grownup men as well:

"Imagine that you are driving a car. The driver is the only person in control, the only one who gets to pull the brakes and steer the car. What happens if another person tries to make decisions on behalf of the driver? What happens if they pull brakes when the driver is not ready? It turns dangerous and life-threatening."

That's what happens when a husband forces himself upon his wife and makes unwarranted decision on her body.

It is not sex. It does not lead to any pleasure for the woman. It is a violation of bodily autonomy.

Marriage is Not Lifetime Consent

"The expectation of sex of the husband, with his wife is, a legitimate expectation, a healthy sexual relationship being integral to the marital bond. Unjustified denial of sexual access, by either spouse to the other, is not, sanctified or even condoned by law," Justice Shankar further elaborates his point of view.

There is no 'legitimate expectation of sex' in any relationship – just like how there is none between strangers.

Let's fall back to an analogy that I spoke about with my niece.

"You are at someone's house. You ring the doorbell or send a WhatsApp message. You wait for them to open the door. This does not mean they give you their house keys to enter anytime you please. The next time you visit their house, they may or may not open the door. That is completely up to them. Because it is their house."

A wife may have given her consent 499 times before. But if she says "NO" the 500th time, and the husband forces himself upon her, I reiterate:

It is not sex. It does not lead to any pleasure for the woman. It is called rape.

Sex Is Not About Sacredness, But Respect

"Sex between a wife & a husband is sacred. In no subsisting, surviving and healthy marriage should sex be a mere physical act, aimed at gratifying the gross senses. The emotional element of the act of sex, when performed between and wife and husband, is undeniable," writes Justice Shankar.

He added that:

"Introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist, if he has, on one or more occasion, sex with her without her consent would, in my view, be completely antithetical to the very institution of marriage."

When my husband and I got married, we promised each other love and respect. To me, and to hundreds and thousands of women in India, marriage is a partnership of equals. As it should be.

The above lines in the split verdict makes me question if the woman's individual self is all but lost, in the eyes of law, if we are going to repeatedly fall back on the sanctity of marriage.

Does the so-called sacredness mean the woman, the wife, submits to her man – no questions asked?

'A Produce Of Rape'

The marital rape judgment, more than anything, is triggering – as pointed by many on social media. It reflects not only how the judiciary sees marital rape, but also how society sees it.

"The daughter born of such an act would, if the petitioner’s submissions are to be accepted, be a product of rape," writes Justice Hari Shankar, and adds that:

"Though the child has been born out of wedlock, and out of a perfectly legitimate sexual act between her parents, she would be the child of a rapist because her mother was, on the occasion when she had sex with her father, been unwilling."

Is that a reason enough to disregard marital rape? Should the man have not thought about the consequences before he forced himself upon his wife? Is such a man even fit to raise a child?

And if a child is a result of rape, then it is what it is.

More importantly, it offers a free commentary on the perceived role of a woman in a family system.

Justice Hari Shankar's lines do nothing to protect the institution of marriage. It robs married women of respect. Above all, it makes survivors of marital rape invisible and normalises what they are going through.

For women, that is a tragedy.