Shredding government's logic that a man can't rape his wife
"What may appear to be marital rape to an individual wife, may not appear so to others," says the Narendra Modi government to the Delhi High Court, opposing the criminalisation of marital rape. Forget the feminist, egalitarian principles of justice and equality, let's demonstrate purely based on logic why the Centre's argument is redundant and blatantly sexist.
Let me at the outset clarify that this is not some court room banter, but the stand of the Centre in an affidavit to the Delhi High Court. Here is a point-by-point rebuttal to the arguments submitted by the Union government:
1. What may appear rape to the wife may not appear so to others
So, in order to come to the conclusion that she is raped, a woman must fulfil some standards defined by the society and the popular discourse when it comes to rape. What the government is saying is it's not enough that you are raped, you must appear to be raped. If you are married, your paternal and maternal uncles and aunts must perceive that you are raped and your perception doesn't really matter.
For unmarried women, legally, there is no such requirement nor does the Constitution or logic permit that rape needs to be perceived by others as rape for it to be an offence. The experience and perception of the survivor is the basis of any complaint in a rape case where, eventually, investigation will have to prove there was no consent.
The argument that it will solely depend on the perception of women is flimsy by the standards of criminal law. Also, during the triple talaq hearing, the Centre itself cited the obligation to international conventions to bring in equality. I wonder what happened to those conventions and obligations now!
2. Rape and 'non-rape' need to be defined
Dear government, there is such a thing called consent. There is nothing called rape and non-rape. There is rape and there is sex which is consensual.
Consent is at the heart of this concept. Whoever drafted this affidavit really needs to understand that this is not only illogical but also demeaning to women. The Centre is clearly smirking at a very serious issue by saying we need to define non-rape. How can a democratic government that recently fought for the "rights of Muslim women" speak about half of its population in such a disgraceful manner? Women say "yes" or "no" to sex and that should define rape and "non-rape".
3. Criminalisation of marital rape shall destabilise the institution of marriage
No my Lord! Rape within the institution of marriage destabilises the unit of family. Isn't this argument equivalent to saying don't argue too much for you need to keep the marriage or don't report domestic violence to save the marriage or just meet this last dowry demand to save the marriage? An institution where rape is acceptable cannot be the basis of a family. Families are built on trust and mutual respect. What kind of individuals do we churn out if our families are the epicentre of violence and repression?
This is a classic argument that has been used to make women accept and normalise violence in our country. Men and women must work together to save the institution of marriage.
4. Just because the West has done it, we shouldn't; India has peculiar features like poverty, illiteracy, lack of financial empowerment of women and societal mindset
Interestingly, the above are the reasons for stronger laws against any sort of oppression within or outside the family. In a society which necessitates marriage for women to exist, laws must protect women from physical and sexual violence. So while the law protects me from physical violence within marriage, I am not protected from any sexual violence.
In marriage, the two forms of violence are often intrinsically linked. Doesn't illiteracy and poverty demand that law protects the vulnerable? Or perhaps the government's argument is that the vast majority of women won't really understand the law, hence let's not have one!
5. Lack of evidence to prove marital rape/misuse like 498a
Before jumping to the evidentiary issues, let's begin by understanding that the Centre is scared that such a law will be misused. We don't even have a law on marital rape now, no modalities or proposal. Before we even agree in principle to bring in a law, the assumption is that it will be misused.
The assumption stems from the fact that it "favours" women in a certain way. Can a legal remedy against rape within marriage be called a favour? Why does the government begin from a negative standpoint? Does that not stink of bigotry and misogyny?
The Centre even further argues that it will be used for harassing husbands - only a poorly drafted law can be widely misused. There is still something called "dowry death" in this country. So while I can be physically assaulted and burnt to death, I can't be raped in the institution of marriage!
As for 498a, If there are issues with the anti-dowry harassment law, plug those gaps. Don't use it to silence the right voices.
Evidentiary issues remain a troubled area. Even in rapes outside marriage, evidence continues to haunt the courts and police. Developed countries like the UK are still grappling with them, and if at all we have a law it must address this complexity.
Lastly and, most importantly, in this short affidavit nowhere does the government say that marital rape doesn't happen - it just says don't criminalise it. So while my government concedes to the issue, it tragically chooses to guard the territories of patriarchy!