Thursday 30 April 2015

Marital Rape: Do we really need a fresh law?

By Sumit Nagpal

Nonsense! This was the response I got from a Supreme Court lawyer when I was tweeting against the demand for having a law to deal with what is called marital rape in India. I was a bit amused to see the other responses. Someone said that I am a chauvinist who supports marital rape and someone even responded by saying I am ignorant to the fact that it does exist. But if I am against the idea of a separate law to deal with marital rape, it doesn't automatically means that I condone it or I am supporting what is termed as marital rape, neither I am a person who is ignorant to the fact that marital rapes is a reality around the world. I am of the firm opinion that it should not be called marital rape but it should be termed as cruelty and NOT rape.

Marriage under Hindu law is a sacred where conjugal relations are the very essence of the relationship. If a spouse leaves the other the spouse has a right to file a case for restitution of the conjugal rights. And what are normal conjugal rights? It means having normal mental and physical relationship, procreation and living a happy married life. A happy married life means mental and physical bonding between both the spouses and each spouse can have a reasonable expectation from the other that he or she will get both physical and mental pleasure. Now if a wife is saying no to have sex with the husband, she is exercising her right to have sex on her own will on the one hand, she is also denying to her husband what may be considered as a normal expectation from his side. So in case the husband forces his way on her, does it mean he should be sent to jail for getting what he is otherwise legally entitled to get? Certainly no is the answer. (When I say "legally entitled to get", it means a man's entitlement to conjugal rights and not entitlement to rape. Have been forced to add this line because of a willful misinterpretation by someone who wanted to play mischief.)

Nobody on this earth can deny that desire to have sex a natural desire and men have every right to fulfill it in a happy married life. Imagine a lady denies sex to the husband or rarely allows him to have sex. What should a man do? He can’t go out to have sex with any other woman because to have sex outside the marriage is the first ground for divorce under Hindu Law. So you deny him sex at home, law doesn’t permit sex out of marriage and a man has no recourse available to satisfy his natural urge. 

Indian law is heavily tilted in favour of women. Even I have seen gross misuse of section 498A of the Indian Penal Code, I have still never written for removal of this law. I know how this law comes to the rescues of many women who genuinely suffer on the hands of her husband and in laws. The question here is whether 498A can only deal with cases of dowry related issues? The answer is No. Over the years, Supreme Court has expanded the definition of cruelty. Now it includes cases where the husband doesn’t have sex with wife for a long time. This extended definition makes me wonder that when not having sex with the wife can be covered under the definition of cruelty, why it can’t cover cases where the husband is trying to have forcible sex. Problem with applying 498A in what is called a marital rape case is that there is a general perception that 498A applies only to dowry related issues. But I will not be surprised if tomorrow some judge of the Supreme Court or the High Court gives an interpretation that 498A includes marital rape by husbands.

In any rape case, consent is the criteria for deciding the guilt and the protection to husbands under Section 375 of the IPC is silent on the issue of consent. But can’t it be reasonably presumed that marriage is itself means that a man and a woman are consenting to conjugal relationship? I don’t, even for a second, mean that men have a license to force themselves on wives the moment they get married but it is true that a man can have a reasonable expectation from his wife when it comes to sex. And when there is consent for conjugal relationship, it cannot be termed as rape but at the most one can say that it is an act of cruelty which should be dealt with under Section 498A of the IPC.

When I say Indian Law is heavily tilted in favour of women, I say it because I have seen numerous cases of abuse of law. The recent statistics show that Indian men are committing suicide because of the harassment meted out to them because of false dowry and rape cases. Do men get compensation if they are acquitted of false rape/dowry cases? No. Then how can we think that we will be doing justice if we create one more law to deal with marital rape? As explained above, Section 498A of the IPC can deal with these cases on the criminal side and Domestic Violence Act can deal with the situation on the civil side. A women can have shared household under Domestic Violence Act, can go for legal separation if she wishes, get maintenance if she is unable to maintain herself financially. Existing laws can deal with all the situations which may arise due to the cruelty. 

I have no hesitation in saying that the demand for having a separate law is creation of feminist minds who want to see husbands in jail for having a reasonable expectation from his wife. As there is a famous saying “marriage is the price men pay for sex, sex is the price women pay for marriage” one should accept the hard reality and should not attempt to create a law which will be misused 100 times more than the legendary Section 498A of IPC. If a wife is being subjected to forcible sex, let her file a case under 498A or seek protection under Domestic violence law or file for divorce. Merely creating more misery for men will not help the institution of marriage, rather it will be a great injustice to women as the gross misuse of the law will trivialize the entire issue and genuine victims will rarely get relief.