Rape is a sexual offense that involves sexual intercourse/sexual penetration carried out against a person without that person’s consent. Note here that this definition is gender-neutral, which Article-375 of IPC is not. It inherently believes that an accused would be a man and the victim would be a woman. But marital rape is a 20th Century concept proposed by early feminist movements that originated in America and Europe, where a lawfully married wife can accuse her husband of raping her. It was basically steaming out of women’s anger against Coverture Concept (Legal doctrine in America and Europe, where a Women’s legal rights and obligations are subsumed by husband upon marriage)
Definition (Marital Rape)
Subscribers of the Marital Rape concept define it as the same as the definition of Rape. They don’t have any exception of marriage consent or anything like article-375 has. In their opinion, whenever you are having intercourse with your partner/wife you must take her consent explicitly or implicitly.
Now, what is “Consent” then? Consent is an agreement between partners to perform a sexual act. When you marry you give consent that from now on, we will be husband and wife and intercourse will be a part of our marriage. But it is not the only thing that both individuals give their consent implicitly. Consent is given for not lying to each other, Consent for fulfilling promises, Consent of helping each other and families, Consent of not cheating, and so on. If any of the partners is breaking अग्नि वचन, made at the time of the wedding, then the state should come up with legislation to punish that person for committing the moral crime of breaking a vow. It is as absurd as it sounds. It would amount to the invasion of the state into the personal space of others.
We Indians have a different culture and practices which are very different from our Colonizers, who believed that Men has the right over their wife physically, materialistically, and in all other sense that they can. This is corroborated by the Coverture Concept, Adultery (control of men over the body of his wife). Like Chief Justice John Holt of England in 1707, said that an act of sexual intercourse with another man’s wife is “HIGHEST INVASION OF PROPERTY”. Note the word “Property”. Whereas in India (Hindu Culture) there has been no concept of COVERTURE, ADULTERY, etc. These things slightly seeped into our society over the course of 200 years of subjugation by Britishers. They were the political masters and influenced our society heavily by using Laws i.e., Land reform acts, Adultery act, Dowry Management in the 1850s, etc.
Statistics of Marital rape
Although no official government agency or organization does any kind of census on the issue of Marital rape, there were some unofficial surveys conducted to get the nerve of this issue in Indian society. In 2005-06 National Family Health Survey (NFHS) found that 93% of 80,000 women interviewed were sexually assaulted by their husbands (how this interview was conducted and what actually these women meant by sexual assault is a matter of study). In U.S.A 10-14% are technically sexually assaulted by their Husbands. Indiana Coalition Against Sexual Assault (ICASA) reported that 14% of women are sexually assaulted by their husbands. The more reports and agencies we shuffle, the more we see different statistics. Because we do not have tools to find, as to which time the consent was “ON” or “OFF”. The main issue of documenting this form of crime is that it’s very ambiguous to find which coitus between a couple would amount to Marital rape. We also cannot deny the possibility of some very vicious women who use these concepts and terms to meet their selfish goals or use them against their husbands for seeking revenge. As it happens in so many cases of the Dowry Act, new brides implicate innocent families under a false accusation, and since the law is very stringent, innocent families suffer a lot.
Today the Delhi High court is hearing petitions challenging the exception in Article-375 of IPC. Which does not count the husband as a rapist for having sex without the consent of Women. Right now, we are on the path of making a common consensus around this issue. We are yet to decide whether is it good or bad for our social construct, once things are settled, either a Law will come or any other institution, will look upon this issue/crime.
Many countries brought legislation on this issue in the early 20th CE. Soviet (1922), Poland (1932), etc. Countries like Yugoslavia, Israel, Austria, France, Germany, and the U.S.A brought such a law in the latter half of the 20th CE. These Laws were brought by fierce Feminist Movements around multiple issues of women’s equality and independence i.e., No property rights, Prohibition of working in open spaces, Adultery Laws, Coverture, etc.
Blind Western Following
Indians, especially those who call themselves Elites, English speaking class, and Modern. These people are heavily suffering from a disease of Mental Colonialism. This means that they will speak, believe and follow, whatever is being said, done, or thought by a person with white skin. Because they haven’t forgotten the lessons taught by Colonials, that brown skins are servants and white skin are masters and you must obey us, denounce your country, culture and follow whatever “Shit” we do. The same mentality took us 70 years to decriminalize 377 (having intercourse with same-sex), Adultery law. A person who copies either American or European is considered to be modern and sophisticated, it doesn’t matter how illogical and ridiculous he/she looks or harms his country and culture. They only care about the fulfillment of their perceived idea of Colonial/White supremacy. Marital Rape is one of those many concepts that these Elites and so-called Educated elite is shouting out loud without knowing their own culture and thinking, whether this was related to their history or country.
What we should be competing in the field of Science and Technology, Education, Healthcare, Manufacturing, and Infrastructural capabilities. Unfortunately, these people who have their cranial rests in their rectum do not care much about the above things, because they don’t invite attention and they are not provocative, they don’t get reported in newspapers.
Before doing anything, we need to understand, research and study this issue briefly. Just because someone wants to look cool, modern, pro-women, and women emancipator in their perceived circle of influence, they are furthering an ill-informed opinion and viewpoint without doing proper homework. The same thing is being repeated on the issue of “Same-Sex Marriage”. We are not asking the right questions, just because people of other countries are allowing it, we should also do that. Question should be
1.. Why do you want to marry a same-sex person when you can stay with them in perpetuity, and if you do, then the method of marrying with your partner should not be ours. Because this method is only made for Men and Women. But if you still insist on it, then you are invading our space of cultural practice and distorting it. Why don’t you use the western style of marriage, being a Hindu, you should respect us, in order to expect the same for your rights.
2.. If you are hell-bent on living/marrying a person, then do it. Why do you need a law to legalize your Marriage? Marriage is a social institution to sustain population, culture, religion, etc. Your Marriage is not self-sustaining.
3.. What is that one thing that you cannot do, when you are not married but can do when you are married?
Flaws in Marital Rape concept in Indian Conditions.
There are multiple Laws in India that were designed to alleviate the suffering of one particular group, but over the course of the period of time, they are misused by certain people with vested interests. Such laws are Dowry Act, Domestic Violence Act, SC/ST Atrocities (Prevention) Act, etc. These Laws only rely on one single statement of a person to send others into jail, no inquiry and verification occur beforehand. The definition in Domestic violence and SC/ST act areas such that females and SC/ST cannot be perpetrators and they will always be victims, no matter what are the circumstances. If we are planning to do the same for Marital Rape, then we are heading towards a gorge like sheep and will fall, because we are blindly consuming and implementing everything coming from the west.
The real issue comes, how are we going to discriminate between a false complaint and a genuine complaint? Like in Dowry Act, the mere statement of Bride is sufficient to frame an entire innocent family, if that woman decides to do some extraordinary thing. There is no concept of Bail in the Dowry Act and SC/ST act. And they are being heavily misused in Urban and Rural spaces of our Country. How we should know that at the time of intercourse woman gave consent and while she is complaining she is not lying out of any compulsion to punish her husband for something unrelated thing did/said by him.
This paranoia of Legislating everything in our society is yet to be gone. Our government and elites are still carrying some yolk of the colonial period. There is a Dowry system, let’s legislate. There is Marriage, let’s legislate. Then why should we not make laws for other Moral Crimes that we commit on daily basis? Breach of trust, let’s Legislate and Punish everyone who makes false promises to their wives, friends, colleagues, Parents, etc. Make legislation to punish people who lie. Since cheating on your partner is also a Moral crime, let’s legislate and punish those men/women who cheat on their partners. But these same proponents of the Marital Rape concept will oppose it by saying, it is anti-modern, if people are enjoying the company of others, let them do it. This is the exact copy of western culture because at one time same Adultery was considered to be a crime and now this Adultery has become the fashion in western culture, so these Copy-Paste Intellectuals will do the same and try to impose it on our country.
Let’s be very specific and clear with our Aim and Tools, with which we will achieve these goals. Marital Rape is a synthesized word in the background of India. For a moment, if we assume that such things are done and forced by a husband, it is morally incorrect if both are not ready, one should not force onto others but on the same note, the solution must not come from the government via legislation, then it will be the unnecessary intervention of the state in personal affairs and violation of article 21. Moral Crimes are not solved by Laws, Legislation but by Society themselves. We must shun this socialist attitude of my rights, my rights, and only my rights. Start talking about your own responsibilities as Husbands and Wives. If you pay your responsibilities right, your rights would be served automatically. You won’t need to ask for it like beggars, which we are fed up hearing for 70 years. Stop this nonsense of “MY RIGHTS”. Start saying “MY RESPONSIBILITIES” and this applies to everyone equally, Men, Women, Trans, Boys, girls,s or anyone. Although there are few animals living in our society, some Husbands need to understand, if their partners are not comfortable with anything, they should not force it. The same thing applies to wives. Both should live by their “वचन” at the time of Marriage.
Achievement out of Marital Rape we seek vs We will Get.
In the west people are not much interested in marriage, because for multiple reasons and marital rape is one of them. It put their population on a roller coaster ride. Unlike America, it maintains its population by immigration, but many European countries are suffering from this problem, and the continuous influx of refugees from terror-affected lands of Northern Africa led to demographic changes, which is equally troubling.
Introducing Marital rape as a tool to punish people by the state will induce many negative things in our society. It will increase the number of divorces and decrease the success rate of marriage institutions, which is the foundation of our entire society. It will put the future of children of separating couples in trouble. More depression will prevail among Men, Women, and Children. This will trigger more consumption of Alcohol because it relieves stress and depression temporarily.
Efforts of relieving this Moral Crime, should not be legal lest anything else. First, a proper study and census should be done to at least have an idea of the scale of this issue. Then efforts to strengthen social interaction and family capacity building needs to be done with the help of SHGs, Civil Right Groups, and NGOs. Awareness and prevention must come from society and people themselves. If things are enforced, then it will have the repercussions mentioned above.
Indians need to start thinking for themselves and reject anything which is alien to us and our culture. We are an independent nation and this independence should reflect in every aspect ranging from Laws, Institutions, Crime Management, and Crime perceptions. In order to look modern, we can do a lot of other things i.e., Scientific fields, Skilling India, Manufacturing, etc. But we must stop acting like the agent of white skin in the post-colonial era. One thing must end by now, and that is Mental Colonialism.