Why is it difficult to understand “marital-rape”?
Posted February 18, 2013on:
Justice Verma committee recently suggested the government to recognise and penalise rape with in marriage. Feminists across the nation are conducting demonstrations where ever possible to get this enacted. Those who control the media encouraged it to condition the public view regarding this. Media took this as a great opportunity to get some extra viewers and readers. But government rejected the suggestion saying that there is no consensus on this issue yet and the subject which has far reaching consequences is not debated well enough. Let us set aside our impulses, sentiments and prejudices and attempt to check whether or not the demand is valid.
Even though Justice Verma committee report is the first official INDIAN record (to my knowledge) to include the phrase “marital rape”, it was originated from Rockefeller’s UN CEDAW committee. For all practical purposes of this debate, lets take this report as the source and go by that. The CEDAW report suggested to remove the exception of marital rape from the definition of rape in indian penal code. The report lays out all the existing definitions and also cites various supreme court decisions regarding rape. The question what remains is that, whether or not “consent” for the purpose of IPC 375 is implied within marriage for every intercourse.
To answer that, first we should differentiate intercourse within and outside marriage. To differentiate that further, obviously, we should define what ‘marriage‘ is. Undoubtedly, marriage was originally a religious concept which was later hijacked by the State. So what is marriage as per the State? Well, that depends on what kind of religious belief one follows. For Hindu followers, the State has defined Hindu Marriage Act (HMA), 1955, followers of Islam didn’t allow the State to hijack their beliefs so they can follow their own Shariah law, followers of Christianity the State has defined Indian Christian Marriage Act, 1872, for others the State has defined Special Marriage Act. Since majority of the Indian population are Hindus we shall check HMA 1955 first, to see what marriage is…
Section 2 of this Act says, it is applicable to anyone who is governed by the Hindu law or by any custom or usage.
Section 3(a) defines
the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;
That’s what the State says; lets take a look at what the religion says:
(i)According to the Hindu scriptures marriage is the basis of all religious activities. In the words of author K.M Kapadia marriage is primarily for the fulfillment of duties; the basic aim of marriage was dharma.
(ii) Procreation: In Hindu families the child is given a very important place. According to Rig Veda, the husband accepts the palm of wife in order to get a high breed progeny. According to Manusmrithi, the chief aim of marriage is procreation; Mahabarat has also maintained the same view.
(iii)Sexual pleasure: The Hindu scriptures have compared the sexual pleasure with the relation of divine bliss. According to Vatsyanyan sexual pleasure is the chief aim in marriage.
So, “consent” for the purpose of IPC 375 is already established in those marriages solemnized under HMA 1955. The beneficiaries of this particular Act are those who follow the Hindu beliefs, so it is obvious that they enter in to marriage with those principles laid out in their holy scriptures. That being said, if State wants to recognise marital rape among this community, then it has to repeal Hindu marriage Act to begin with. There is a severe race condition here which makes that impossible! Other religions derived from Hinduism should be following the same principles. So their consent is also implicitly validated.
For those who follow Christianity, even though Bible has no clear definition of marriage, the commonly held beliefs as per http://christianity.about.com/od/whatdoesthebiblesay/a/marriagecovenan.htm
The couple is married in the eyes of God when the physical union is consummated through sexual intercourse.
- The couple is married in the eyes of God when the couple is legally married.
- The couple is married in the eyes of God after they have participated in a formal religious wedding ceremony.
Here also sexual intercourse is considered as an essential ingredient of marriage and hence consent is implied. If State wants to recognise marital rape among this community, then it has to repeal The Indian Christian Marriage Act, 1872!
What’s left out is the Special Marriage Act. Here also the State is leaving the definitions customs and usages to the religions, so “consent” for the purpose of IPC 375 is already established in those marriages too.
To me it looks like the only option for those spouses who are doubtful about possible rape attempt or rape is to get out of the marriage. There are plenty of women centric laws to make that process easy and fruitful; (male victims please excuse). As mentioned above, conceptually, marriage is a license for sex; either for procreation or physical pleasure. Just the way the license to drive a vehicle is issued; you are allowed to drive, but if you break the rules you get a ticket to pay the fine, not a life sentence. Same way, Domestic Violence Act already deals with sexual abuses that resembles a traffic violation; only drawback is it doesn’t recognise male victims and that is what we need to fix!
I don’t believe that, in a smooth running family all of a sudden one spouse pounce on the other and rape him/her. Forget about violent sex! apparently, what Indian couples face is a serious problem of lack of sex. See this Times of India article Indian couples have less sex? Well, that doesn’t surprise me; in general, sex dies within early years of marriage but the relationship continues based on the emotional bonding and the newly generated biological relationship through kids.
The bottom line is, don’t let United Nations define our internal laws; welfare of women is not their goal; they are up to bringing New World Order and depopulation; family laws should be family friendly; it should not be a tool to break the family or settle scores or to make a deal.