With existing laws "failing to recognise woman as an individual capable of making her own choices", Congress MP Shashi Tharoor has moved a private members' bill seeking to make marital rape a crime and give her “inherent right” to their sexual and reproductive choices.
Tharoor, who introduced 'The Women's Sexual Reproductive and Menstrual Rights Bill, 2018' in Lok Sabha on last Friday, also want to allow women the choice of legal termination of pregnancy below 24 weeks and provision for public schools to provide girls with free sanitary napkins.
"Women have been made vulnerable by the social construct of patriarchy, leading to their exclusion in every other social space. Unless we account for these inequalities and deconstruct patriarchal notions, we will fail in our constitutional mandate to ensure everyone's right to access justice," the Statement of Objects and Reasons of the Bill said.
The Bill seeks to take away the exception given to men in Section 375 (rape) of Indian Penal Code (IPC) in sexual relations with their wives and Tharoor feels that it assumes that a woman "loses her sexual autonomy upon her marriage to a man". At present, the IPC says that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape.
“The autonomy of the woman must be rightfully restored to her by granting her the agency over her sexual and reproductive rights. For this, marital rape must be criminalized to eliminate the loss of a woman's sexual independence post marriage,” the Bill said.
It also said "unrelated facts" about a woman's life such as caste, profession clothing preference, personal opinion and past sexual conduct should not be factors in presuming her sexual consent.
Pointing out that "another major source of inequality" is the absence of access to menstrual hygiene products that puts girls out of schools and women out of the workforce, pushing them into the "vicious cycle of dependency", the Bill demands that schools and public authorities to supply sanitary pads free of cost to any girl or women in their facilities.
"The absence of an equivalent reproductive process in men has resulted in our failure to consider the lack of facility for women's menstrual hygiene. We have failed to admit that this biological process is a role women play for the subsistence of the human species as a whole," it says.
The Bill also seeks to grant all women the right to termination of pregnancy until the 12th week of pregnancy. The provision is only available till 12th week to avoid the possibility of female foeticide as the gender of the foetus can be recognised only after this period.
However, in “all other circumstances”, including when the foetus or the pregnant woman has any injury or threat to life, or when a woman is a rape survivor or has a disability, she should have the right to terminate her pregnancy.
“There must be no unnecessary distinction in the right to terminate pregnancy between married and unmarried women...A major hurdle in the termination of pregnancy is the social stigma attached to it, which should be removed by absolutely protecting the privacy of a woman who intends to or terminates her pregnancy,” it added.