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In the bedroom or a gufa in a dera, rape is rape

On the marital rape issue — why must the State instead of protecting any woman’s sexuality from forced violation, continue to present or treat her merely as family property?

analysis Updated: Aug 31, 2017 16:45 IST
Mrinal Pande
Mrinal Pande
Rape,Marital rape,Patriarchy
Even though the present government is a supporter of penetrating citizens’ privacy to gather vital data through Aadhaar, it has chosen to support its bitter rival the UPA in of keeping the bedroom out of bounds for India’s rape laws. (Image for representation purpose only)(iStock)

As matriarchy was beaten back and patriarchy came to hold sway, the all male groups of law makers unanimously based the offence of rape on the principle of theft. Under this concept (supported notably by both Manu and the English Common law), a woman is a property that belongs first to the father, then the husband. So if she is sexually violated before marriage it will be deemed an offence against the father and post marriage, against the lawful husband. In 1736 Sir Matthew Hale supported this when he adjudicated that a husband could not be guilty of rape on his “lawful wife”, for by her matrimonial consent she had agreed to this (rape by the husband) and this consent she could not retract. So in simpler words marriage extinguishes both the legal and sexual autonomy of a wife!

By 1991 the world had changed sufficiently for this grossly unjust principle to be rejected in Australia by Justice Brannon who declared it, “offensive to human dignity and incompatible with the legal status of a spouse”. The same year in England, Lord Keith also declared (in the House of Lords) that marriage in modern times is “a partnership between equals” and the wife may no longer be deemed her husband’s “subservient chattel”. In India things change somewhat slowly. It was only after (in the winter of 2012) the nation was rocked by a terrible incident of gang rape and murder of a young woman by a group of men that the UPA government bowed to public pressure and mandated a high-level committee led by Justice Verma, one of India’s finest judges, to restructure India’s rape laws and make them more woman-friendly. The Committee did a commendable job and its comprehensive report recommended that marital rape must also be brought within the purview of criminal rape. A marital relationship between the perpetrator and the victim should no longer construed as a valid defence for the man violating a woman’s human rights.

Despite their strong recommendation the then UPA Government rejected this particular recommendation while accepting most others. In 2014, the rival NDA government came to power. But even though the present government is a vehement supporter of penetrating citizens’ privacy to gather vital data through Aadhaar, it has chosen to support its bitter rival the UPA in the matter of keeping the bedroom out of bounds for India’s rape laws. On 28th August it stated (in an affidavit to the Delhi High Court): “what may appear to be marital rape” to a wife “may not appear so to others”. And that criminalising marital rape may “destabilise the institution of marriage apart from being an easy tool for harassing the husbands.”

“The concept of marital rape as understood internationally cannot be applied in the Indian context due to various factors.” notes the Union Cabinet Minister for Women and Child Development.

Today a new wave of conservatism-political, religious, deeply hostile to several gains made by the women after a long hard struggle, is sweeping across the country. The recent anti-homosexual and anti-abortions rulings are all part of this neo-conservative world view. Together they have slowly eroded the ground of choice expanded over the last seventy years, bit by bit by men and women who respected human rights of all men and women. The result of the increasingly regressive mindset is a ten-year-old victim of rape being forced to give birth at a huge risk to her life, millions of women being squeezed out of work force and an undeniable rise of sexual crimes against women all over India.

The point to note is that whether in a bedroom or in some gufa in a Dera, in women’s personal experience, a rape remains a rape. And what married men want from their wives, may not always automatically be what the wives also want from husbands. Why must the State instead of protecting any woman’s sexuality from forced violation and expropriation, continue to present or treat her merely as family property when a crime is committed against her? From the police thana to the courts the case is linked to a family, and adjudicated on grounds of restoring behenon, betiyon or mataon ki izzat (read family name) ki raksha. It is seldom if ever a violation of the individual human rights of the violated woman who remains so and so’s wife, daughter or sister? If she fails to fit, she is mostly discarded as a whore. Interestingly male sexual desire is being romanticised, even sacralised like never before both in society and the media. The Governor of a state, a very learned jurist himself, defies criminalisation of marital rape on grounds it will destroy the family system. Even the minister for women and child development, who had earlier held sensible pro-women views on the matter, now quotes the Hindu view of marriage as a sacrament as one of the reasons why India cannot accept the internationally accepted criminalisation of marital rape.

Once we accept the definition of marriage and rape as defined through the centuries by men, the adjudicated line will come focus on assessment of a wife’s “will”. Was she really unwilling to have sex or only playing hard to get? Isn’t force an ‘accepted’ part of intercourse? Shouldn’t all well-brought-up women be expecting the ideal Mard, the He Man, to assert his will and take the lead in lovemaking? Is the complainant protesting too much? Men who sexually harass wives can go on defending themselves in courts saying she had been harassing him and was crying rape out of malice. They know that the law as it stands will insist on measuring a woman’s consent from the socially reasonable (read objective men’s) point of view, which holds marriage to be an indissoluble sacrament. And the framework of traditional marriage being what it is in its operative form, married women will be seen as less human, more object like, less worthy and less injured than they actually are.

On 26th December, in room 222 of the Vigyan Bhawan annexe, writes the late Justice Leila Seth, Justice JS Verma read out a few guidelines to the Committee Members : “When a woman is subjected to a crime like rape, it becomes a multiple crime. She is raped at home, then in public life, followed by an agonizing cross-examination…her status in the hierarchical structure of society also obstructs the way of securing justice…her social status compounds her gender injustice...” ( Talking of Justice-People’s Rights in Modern India by Justice Leila Seth)

The case could not be better stated.

Mrinal Pande is former chairperson, Prasar Bharti and a senior journalist.

The views expressed are personal

First Published: Aug 31, 2017 16:44 IST