Context

On May 10, 2022, a two-judge bench of the Delhi High Court gave a split ruling on marital rape, thus ensuring a future hearing in the Supreme Court.

Why rape and marriage were seen as mutually exclusive

• The concepts of rape and marriage were seen as mutually exclusive – they could not be brought together.
• Across the world, and till very recently, marriage has been explicitly treated as being outside the purview of rape.
• Even in the Western countries that we associate with the more “advanced” practices of gender equality, marital rape was treated as an exception to the crime of rape till the early 1990s.
• In the absence of a universal definition, several scholars take marriage to be an institution where a man and a woman live together, have sexual relations and engage in cooperative economic activity.
• Link between marriage and property: Others have emphasised the link between marriage and property.
• The dominant form of marriage in the modern West became quite distinctly patriarchal, visible in late 18th-century British law, for instance, whereby a wife became the property of her husband upon marriage.
• Husbands, therefore, had the right to access their wives sexually, without the question of coercion or consent being on the horizon in the first place.
• As property, wives had to be protected from the (illegal) sexual access of other men, and here too, their consent was irrelevant.

Introduction of marital rape

• If what distinguishes the relationship of husband and wife from other relations between men and women is the legitimate expectation of sexual relations, then the introduction of marital rape signals the entry of a new and equally legitimate expectation: A wife’s consent to sexual relations is essential, and in this, she is no different from other women.
• Husbands no longer enjoy unquestioned rights over the bodies of their wives — this is what it means for a wife to be a person with bodily integrity.

Conclusion

It is strange, indeed, that most parts of the world, India included, became modern while continuing to believe that wives are the property of husbands.

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