Maneka’s Gandhi’s recent statement to the effect that the concept of marital rape could not be suitably applied in the Indian context due to its unique cultural context has expectedly raised a storm of protest. Why should marriage give license to a man to force himself on a woman against her will? The idea that marriage is a sacrament and hence precludes the idea of coercion and sexual abuse is to use culture to excuse behavior that would be considered criminal in any other context.
Stepping back a little from the idea of rape, the more fundamental notion of consent is itself where the cultural questions begin. Consenting to sex is a distant thing; the truth is that marriage itself is often devoid of consent in any real sense. In most arranged marriages, the girl’s voice tends to be a muted one. There are pockets where the institution of arranged marriage has shown enough elasticity to accommodate the wishes of the individual but even here there is an asymmetry when it comes to boys and girls. As we move away from this small group, we find that the idea of consent is only marginally present, particularly in the case of women. Marriage is not a relationship between individuals but a negotiated transaction between families. It is not as if the absence of overt consent necessarily translates into coercive behaviour, for the institution of the arranged marriage would not survive if that were consistently the case.
According to current cultural practice, when a girl agrees to get married, she implicitly and automatically agrees to have sex with a man she barely knows. All her life, a young girl is protected from contact with men, often obsessively so, and then one ritual later she is enthusiastically pushed into bed with him. Her own desire or its absence plays little role in her (socially manufactured) decision to agree to sexual contact. And this disinterest in the woman’s desire or indeed the lack of legitimacy for the idea that women could have desire is very often a recurring theme that runs through her married life. This means that men need to use some form of blandishment or force to get what they desire- this is the cultural script that has got written and followed more often than not.
Sudhir Kakar has talked about sex in Indian marriages often being “ a shame-ridden affair, a sharp stabbing of lust, with little love and even less passion”, a use of the female body drained of all emotion or fineness. Absence of conversation about each other’s needs creates conditions where communication takes place through actions rather than words.
The marriage itself is imagined as a form of blanket consent. For a woman, the exercise of consent before marriage is denied, for any consensual sexual contact on her part is considered taboo, and after marriage it is seen to be unnecessary for the act of getting married is seen to be a form of consent to all that is to follow. The reason why sexual violence is so embedded is because individual consent on an everyday basis has never been part of the deal in the first place.
Which is why when we talk about criminalising any action that takes place within the boundaries of a marriage, we are making a significant cultural intervention. It is hardly surprising that there is resistance to passing this law, for it attacks the foundational assumptions of a pivotal cultural practice. It is important to be sensitive to the magnitude of the intervention one is seeking to make as well as to acknowledge the complexity of the task.
It also underlines the need to do more at a societal level to make female consent a more important part of the arranged marriage process. There has been some organic change in this regard, thanks to broader social change, but overall, little effort has gone into making an existing social custom more supportive of women. The more seriously communities take the idea of female consent, the more they recognise a woman as an individual first and a gendered being later, the greater the chance of her consent being of consequence in her life.
It is difficult to escape the feeling that it is easier to focus on the acute face of a chronic problem; marital rape is a category that needs to be recognized and punished, but equally it is important to look the deeper problem in the eye. The unwillingness to engage with traditional cultural practices seems to have something to do with the fear of ‘legitimising’ them, which is an absurd pretension to have. Without working with existing customs at a societal level, and helping women find more room within those, legislative interventions, however well intentioned, will end up operating at the periphery. Only in extreme cases, will this law be used, while things will go on as usual otherwise.
Sexual violence in marriage is a serious problem, but it is part of a cultural tapestry that needs to be woven in newer ways. To try and bring about this change without taking any responsibility for the larger set of practices of which it is a part could end up being an exercise that is frustratingly incomplete.
The law needs to change, of that there is no question, but the problem that it seeks to tackle is in large measure not one of law alone. There is a need for social reform from within which needs some form of an on-going societal dialogue. The mental model of the arranged marriage as an institution needs to accommodate the idea of everyday consent. To invoke culture as an excuse for inaction is not the answer, but culture is a variable here and not acknowledging it and working with it is to push for radical change without actually changing much on the ground.