Criminalising marital rape will give right to having sex only to wife

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The Centre’s Narendra Modi government on Tuesday told the Delhi High Court that criminalisation of marital rape will destabilise the institution of marriage apart from being an easy tool for harassing the husbands.

Many on social media were quick to term the Centre’s stand as regressive. But not to many, who champion women’s rights primarily because the Centre’s stand merely indicates that women have no legal recourse if they are physically ‘exploited’ by legally wedded husbands.

However, as is the case with the mainstream media, particularly news channels, this aspect too wasn’t adequately highlighted with facts. No one cared to highlight how criminalising marital rape can be misused by wives and the main challenges all parties including accused can face while proving their innocence.

Marital Relationships

I do not wish to sound like I am living in an ancient age, but somewhere, if two individuals decide to marry, they share a special and very private bond with each other. A relationship, whether emotional, personal or physical between the two is known best by the couple. What happens inside the four walls of a bedroom, will only be privy to the concerned couple.

Abusive Marriages and Prevailing Laws

I am not suggesting even for a second, that abusive marriages do not exist in India or anywhere else. However, under the current prevailing legal system, a wife has ample sections under which she can seek justice.

Section 375

A man is said to commit “rape” if he:–– (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:

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(i) –– Against her will.

(ii) –– Without her consent

(vii) – When she is unable to communicate consent (suggesting she is intoxicated)

Section 376B 

Article 376B of the 2013 law can charge the husband for forced sexual intercourse with his wife – if she is living separately after separation or divorce

Domestic Violence Act, 2005 :

“aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

Section 498A 

Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation: For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman

Section 377

Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.

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What does it mean to criminalize Marital Rape

1) Whenever there are debates on abolishing the highly misused 498A [by some women], a strong counter always suggests that “we cannot abolish a law because it is misused by a few.” Similarly, why do we demand criminalising something, which may only be committed by a handful of individuals?

2) What can be the possible implications on the husband, in case he is innocent?

3) Do we realise that we are going to make a husband live in absolute guilt most of the times, even when he is innocent, as he may not even know that he has raped his wife?

4) Marriage is mutual, everything that must happen within a marriage should be mutual. By criminalising marital rape, are we trying to give an absolute authority of having sex only and only to the wife?

5) Why are we making husbands weak while promoting women empowerment?

6) Will such a marriage ever remain equal?

Possible Misuse and Evidences

It is wrong to say that only 498A is being misused. Surely, every law can be misused to one’s advantage. However, any domestic law has always been pro wife/women, and such a one-sided law will only further prompt women to misuse in their favour

There can be an argument that women never get justice in this country. However, my counter to them will be if a wife/woman ever got convicted for false fabrication of evidences under 498A/Domestic Violence Act, where lives of husbands and his family have been completely ruined?

Now, what if the wife is having adjustment issues with the husband or her in-laws? what if the wife’s demand for a particular greed has not been met and what if she decides to settle score with her in-laws? This can become the easiest tool as her word will be the final.

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The Kabhi Haan Kabhi Naa Moment

To what extent will a judge probe a sexual relationship between a husband and a wife? What if the wife has consented and suddenly next morning realises she was not in favour of the act? What is that credible evidence a husband has in such a scenario to prove himself innocent?

First and foremost, if anyone feels strongly about criminalising the marital rape, they should promote it to be “gender neutral” and not only applicable for the wife. A wife’s word cannot be the sole and final authority to convict a husband.

 

Perhaps the awareness of misuse of 498A is growing and bringing in a new law to tackle marital rape could ensure a 100% success in extorting alimony and settling scores in many cases.

This is also time that the sheer hypocrisy of the so-called women’s rights champions was exposed. Last week when a particular rape victim got justice after 15 long years, we saw most of the feminist spokespersons staying away from TV debates since the high profile case had a political angle to it.

For all so-called women rights activists, a “woman” is only a wife. We have never seen anyone fight for a mother or sister being falsely implicated in legal extortion cases by a wife.

While it is progressive for us women to demand equality in a marriage, we must not forget that the same right cannot be taken away from our husbands because, unless you forget, our brothers and sons too will be husbands one day.

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