So, the debate on Marital rape is on. Indian judiciary is yet to decide whether they want to criminalise something about which the accuser will refrain from producing evidence, and rightly so. After all, other than some radical elements who strive on poaching money through the legal mechanism, most Indians won’t allow someone to interfere in their personal lives.
Traditional media portals are continuously reporting on a supposedly marital rape case in Delhi High Court. However, they have their cognitive biases, due to which a part of the story is hidden from the public domain. We are here to report on something which is barely been put forth in front of the general public.
AMICUS CURIAE
Delhi High Court has appointed Amicus Curiae in this case. Amicus Curiae is a person who judges appoint to get some assistance. That person should be an expert in the subject matter, but not a party to the case. Now, the honourable High Court has appointed Rebecca Mammen John as Amicus curiae in the case.
Rebecca is well known Supreme Court advocate. In the past, she has represented fixing accused S. Sreesanth and Kobad Ghandy, an Indian Communist charged under the Unlawful Activities (Prevention) Act.
If we talk about her credentials in Gender laws, Rebecca has been an author at websites like everydayfeminism.com. Moreover, Kavita Krishnan, a well-known communist had once termed her as a feminist lawyer. She later deleted that tweet. Rebecca’s works are major hits among feminists.
Since she is believed by many as a feminist, it has the potential to raise serious questions about the biasness of advice listened to by the Court.
Read more: Finally! A Big Big Win for Indian Men, Thank you Supreme Court
Consent
Consent is one of the most key issues surrounding the case. It is one of the shadiest areas. It can never have a fixed definition and that is why it is prone to misuse. The straight mathematical concept of ‘Yes means Yes’ does not apply in real life.
A man or woman can give her consent even in a drunk state. Okay, so the non-drunk partner will accept it as Yes. The next morning, the drunken partner would realise that he/she did not want to engage in it, and they said yes in the heat of the moment. Should we charge the supposed rapist for the alleged crime? Sounds absurd?
Read more: Why do Indian Men Rape?
Yes, it is, and this is why it is next to impossible to codify the lives of a married couple, which is filled with volatile extremes of love and hate on daily basis. Various such questions are out in the public domain about the now accepted concept of ‘NO MEANS NO’
Why do we bring the word ‘rape’ into a pious relationship?
Frankly, no one knows who came up with this concept. Yes, women and men both need protection from coercive spouses. In the case of a woman, various remedies are already available to her. If her husband coerces her into an abusive relationship, she is subject to cruelty. Section 498A punishes the husband for cruelty.
Practically, a woman just needs to say that she has been subject to cruelty, and the Indian legal system will make it easier for her to shrug her hand from abusive marriages; simultaneously sending her husband to jail. Moreover, in most cases, women are provided with alimony to take care of their financial needs as well as child custody.
Read more: The role of Hindu and Muslim Personal laws in shaping Societal Norms
Yes, it happens, but why criminalise it?
Criminal law is different from civil law for the simple reason that if a crime happens, it happens against society at large. So, for example, you kill a person, and you go scot-free by paying compensation to the family of the dead (a remedy under civil law), it will encourage others to kill someone. Similarly, if you beat your wife/husband, you need to be punished; otherwise, it will end up sponsoring spousal violence in society.
However, what happens in the bedroom is an extremely private affair. No one likes to talk about it. If a wife is subject to sexual coercion, it’s highly unlike that it will encourage more such men to do so. Indian society is well-versed when it comes to shaming men against such acts if someone brings it out.
If a wife is subject to sexual cruelty, then a civil remedy of divorce is available with her. Moreover, cruelty is already a criminal offence, so what’s there need to bring in an extra category of crime at the time when people are already running away from marriage.
Ram Jethmalani had once said that Law is not the solution to every problem. Opining on the idea of Marital rape, he had said that women will become dictators in their homes. Certainly, the judiciary does not want that. It should either provide a balancing line or leave it to married couples to sort out the differences. After all, the relationship between man and woman is about coordination, rather than feminists’ ideal of power centred conflict.